IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

RAMO DAUSABEA
Claimant

AND:

REGISTRAR OF TITLES
First Defendant

AND:

PACIFIC ISLAND TIMBER COMPANY LTD
Second Defendant

AND:

BAKO CONSTRUCTION TD
Third Defendant

AND:

HAYNES MAETALA
Fourth Defendant

AND:

SIMON SODO
Fifth Defendant

AND:

FRED OTOINAO
Sixth Defendant

Date of hearing: 1st and 18th October 2013.
Date of Judgment: 8th November 2013.

For the Claimant D. Tigulu
For the 1st Defendant D. Damilea 
For the 2nd and 3rd Defendants A. Radclyffe
For the 4th Defendant D. Hou
For the 5th and 6th Defendants No appearance.

JUDGMENT
Apaniai, PJ:

The claim:
1.	This is a claim by Ramo Dausabea ("Claimant") filed on 24 September 2009 seeking against the Registrar of Titles ("1st Defendant"), Pacific Island Timber Company Ltd ("2nd Defendant") and Bako Construction Ltd ("3rd Defendant") the following remedies:-

[1] a declaration that the transfer and registration of fixed-term estate in parcel number 191-052-237 in the name of the 2nd Defendant on 27th July 2001 was void;

[2] a declaration that the transfer and registration of fixed-term estate in parcel number 191-052-237 in the name of the 3rd Defendant on 20th May 2009 was void;

[3] an order against the 1st Defendant to rectify the Register of fixed-term estate by removing the name of the 2nd Defendant as owner of parcel number 191-052-237 and replacing therefor the name of the Claimant;

[4] an injunction to restrain the 3rd Defendant from applying to the 1st Defendant, or from taking any steps whatsoever so as to have its name registered as the owner of the Land herein; and,

[5] costs.

2.	The 2nd and 3rd Defendants have filed their joint defence on 29 September 2009. Along with that defence, they also made a counter claim against the Claimant and the 1st, 4th, 5th and 6th Defendants. The counterclaim against the 4th, 5th and 6th Defendants has necessitated the inclusion of the 4th, 5th and 6th Defendants in this case. These three defendants have constructed buildings on the disputed land with the approval of the Claimant and are currently residing there.

3.	In their counter-claim against the 1st Defendant, the 2nd and 3rd Defendants seek an order for rectification of the register on the ground of mistake.

4.	In their counter-claim against the Claimant and the 4th, 5th and 6th Defendants, the 2nd and 3rd Defendants seek damages for trespass and orders that the 4th, 5th and 6th Defendants remove their buildings from parcel number 191-052-237 ("Lot 237") or, in the alternative, a declaration that the 2nd or the 3rd Defendants are the owners of those buildings.

5.	Finally, the 2nd and 3rd Defendants also seek orders that the Claimant and the 4th, 5th and 6th Defendants, their families, servants and agents vacate Lot 237 and not to return to Lot 237.

6.	The Claimant has filed a defence to the counter-claim denying that the 2nd and 3rd Defendants are entitled to the remedies sought in the counter-claim.

7.	The 4th, 5th and 6th Defendants have not filed any defence to the counter-claim. The 5th and 6th defendants have taken no part in the proceedings but at the commencement of trial on 1 October 2013 counsel informed the court that the 4th Defendant would abide the court judgment. Counsel was therefore excused from further attendance at the trial.

8.	The 1st Defendant has filed a defence to the claim and to the 2nd and 3rd Defendants' counterclaim but has called no evidence. The only evidence in this case are those produced by the Claimant and his two witnesses, Mr. Pinita and Mr. Hikimae, as well as those given by Mr. Jones and that of Mr. Bako Dua in his sworn statement filed on behalf of the 3rd Defendant on 7 March 2011.

Facts not disputed:

9.	The following facts are not seriously disputed. Prior to 27 July 2001, the Claimant was the registered owner of parcel number 191-052-237 ("former parcel") which had been demarcated into 13 blocks of land and which, in his sworn statement filed on 23 December 2010, the Claimant had referred to as "numbered 225 to 237" respectively . 12 of those blocks were smaller while the 13th block was a larger block.

10.	Those 13 blocks of land have now been given separate parcel numbers with the 13th block having being assigned the same parcel number 191-052-237 ("current parcel").

11.	On 7 September 2000, the Claimant and the 2nd Defendant entered into a sale agreement ("Agreement") in relation to the blocks of land comprised in the former parcel. That was before the blocks were formally given distinct parcel numbers. In the Agreement, 12 of the blocks have been identified as lot numbers 1017, 1018, 1019, 1020, 1021, 022, 1032, 1033, 1034, 1035, 1036, and 1037. The lot number of the 13th block has not been referred to specifically and one of the major issues in this case is whether or not the 13th block was also included in the sale. I will discuss this issue later.

12.	Following the signing of the Agreement, all the 13 blocks were registered in the name of the 2nd Defendant. In the transfer document, and on registration, the 12 smaller blocks were given parcel numbers 191-052-225, 191-052- 226, 191-052- 227, 191-052- 228, 191-052- 229, 191-052- 230, 191-052- 231, 191-052- 232, 191-052- 233, 191-052- 234, 191-052- 235 and 191-052- 236 respectively. The 13th block (Lot 237), which is the subject of this claim, remained as parcel number191-052- 237 on registration.

13.	According to the evidence of Joseph Pinita, the parcel numbers for the 12 blocks as well as Lot 237 were given by officers in the Lands Department. It is not disputed that these 12 blocks were smaller in size and that Lot 237 was a larger area which had not yet been subdivided.

14.	In March 2009, the 2nd Defendant sold all 13 blocks to the 3rd Defendant for $750,000.00. The registration of these blocks in the name of the 3rd Defendant was, however, cancelled in June 2009, on the ground that the registration was allegedly done after the Claimant had lodged a caveat against the titles of those blocks of lands on or about 8 August 2008. The cancellation of the 3rd Defendant's title to those blocks means that the titles to all those blocks of land, including Lot 237, remain registered in the name of the 2nd Defendant. That cancellation is also being challenged in these proceedings.

The crux of the claim.

15.	It is the registration of Lot 237 in the name of the 2nd Defendant that has given rise to these proceedings. As earlier hinted, the sale to, and registration in the name of, the 2nd Defendant of the 12 blocks of land (that is parcel numbers 191-052-225, 191-052- 226, 191-052- 227, 191-052- 228, 191-052- 229, 191-052- 230, 191-052- 231, 191-052- 232, 191-052- 233, 191-052- 234, 191-052- 235 and 191-052- 236) are not being seriously challenged.

16.	This claim, therefore, is about the purported sale and registration of Lot 237 in the name of the 2nd Defendant and its subsequent sale and registration in the name of the 3rd Defendant.

17.	The Claimant alleges that there was no agreement to sell Lot 237 to the 2nd Defendant and that the only blocks of land agreed to be sold were the 12 smaller blocks. He says, therefore, that the registration of Lot 237 in the name of the 2nd Defendant was a mistake. He further alleges fraud in relation to the registration claiming that the signature purporting to be his on transfer document is not his signature as he had never at any time signed any transfer form in connection with the transfer of the lots to the 2nd Defendant.

Issues.

18.	In his submission, counsel for the Claimant has raised three major issues in this case. The first is whether Lot 237 was covered under the Agreement. The second is whether mistake or fraud was committed in relation to the execution of the transfer document, and, the third is whether a valid title has been transferred by the 2nd Defendant to the 3rd Defendant.

19.	I agree that those are the issues in this case.

The Agreement.

20.	It is not seriously disputed that the Agreement was entered into between the Claimant and the 2nd Defendant on 7 September 2000. In his sworn statement, the Claimant puts 7 November 2000 as the date they signed the Agreement, however, both Mr. Jones and Mr. Hikimae put the signing date as 7 September 2000. I am sure he must be mistaken for the date written on the Agreement is 7th September 2000. I accept that the date of the Agreement is 7 September 2000.

21.	Clauses 2, 3 and 4 of the Agreement make it clear that the Claimant was indebted to the 2nd Defendant and SLH Timber Corporation Ltd in the sum of $143,669.38 and that the purpose of the Agreement was to clear the debts in exchange for the blocks of land.

22.	The question is, was Lot 237 also intended to be sold to the 2nd Defendant in addition to the other 12 smaller lots? The Claimant says it was not while the 1st, 2nd and 3rd Defendants say it was.

23.	This is a case where the parties have put their intentions into writing. It is my view that, generally, the court will not accept parole evidence of what was intended by the parties where the express provisions of the agreement leave no room for doubt as to what was intended.

24.	The starting point in this case, therefore, is to see whether Lot 237 was among the plots of land for sale to Pacific Island Timber under the Agreement. In deciding this issue, the words of the Agreement are vitally important. Where the words are clear, the intention of the contracting parties will be taken to be that as conveyed by the literal and ordinary meaning of the words used in the agreement. No extrinsic evidence is necessary to determine the intention of the contracting parties.

25.	However, where the words are not clear, extrinsic evidence may be called in aid of determining the intention of the parties and, in that regard, the circumstances surrounding the making of the agreement may also be taken into account. This is so because the mind of a person cannot be proved as a fact but an inference can be drawn from facts which are proved as to what was in the person's mind when the agreement was entered into.

26.	The question is whether it is clear from the words of the Agreement, or from the circumstances of, or surrounding, the making of the Agreement that Lot 237 was among the plots of land intended to be sold by the Claimant?

27.	In his sworn statement filed on 22 December 2010, the Claimant says in paragraph 3 that Parcel No. 191-052-237 consisted of 13 blocks of land numbered 225 to 237 and that there are other blocks near to, but not forming part of, the original parcel. In paragraph 4, he says that blocks 225 to 236 were almost of the same size and smaller and that block 237 was a larger area which was not sub-divided.

28.	When one looks at clause 1 a) of the sale agreement, one sees a description of the blocks of land sold to the 2nd Defendant. Clause 1 a) is in the following terms:-

"1. a) Ramo Dausabea agree to sell one block of lands for the sum of SID143,669.38, situated at Real Estate Honiara Kombuvatu Land (see detail map 1A) surrounded in pink colour. Few parcels in this block have already been subdivided by lot numbers:- 1017 – 1018 – 1019 – 1020 – 1021- 1022 – 1032 – 1033 – 1034 – 1035 – 1036 – 1037. The remain will be subdivided by Walter Jones."

29.	Properly interpreted, what that clause says is that:-

[a] the Claimant is selling one block of land for $143,669.38;

[b] that block of land is situated at Kombuvatu, East Honiara;

[c] that block of land is the one surrounded in pink colour on the map marked as 1A;

[d] few parcels in that block of land have already been sub-divided as Lot numbers 1017 – 1018 – 1019 – 1020 – 1021- 1022 – 1032 – 1033 – 1034 – 1035 – 1036 – 1037;

[e] the "remain" will be sub-divided by Walter Jones.

30.	There seems to be no dispute about sub-paragraphs [a] to [d] above. The dispute appears to be about the word "remain" in clause 1. a) of the Agreement. I understand the Defendants' argument to be that the word "remain" is a typing error for the word "remainder" which, in the context of the Agreement, would mean the remaining block, which is 13th plot or Lot 237. It is noted that when the Claimant was asked by Mr. Damilea in cross examination as to what was meant by the phrase "the remain will be sub-divided by Walter Jones" the Claimant did not answer the question but merely said that it was his understanding that only 12 blocks were sold. If the intention was to sell only the 12 smaller blocks, why was the phrase inserted into the Agreement? 

31.	I am satisfied that the only reasonable inference that can be drawn is that the word "remain" in that phrase is a typing error for the word "remainder" and was meant to be a reference to the remaining block apart from the 12 blocks referred to earlier in that clause. That remaining block is Lot 237.

32.	My conclusion is also supported by the fact that there was a map attached to the Agreement, which marked in pink colour the area of land being sold. There is no evidence to show that Lot 237 was outside the pink area. According to the evidence by Jones and Hikimae, the area bounded in pink colour in the map was the area being sold and that the map was attached to the Agreement at the time of signing. Both Jones and Hikimae admitted that they, along with the Claimant, were present at the time the Agreement was signed. Mr. Hikimae said he signed as witness to the Agreement and had placed his Commissioner For Oath stamp on the map.

33.	Contrary to the denials by the Claimant that no map was attached to the Agreement at the time it was signed, I find, on the strength of both Jones and Hikimae's evidence, that the map was attached to the Agreement at the time it was signed. Lot 237 was inside the area bounded by the pink colour line on that map and therefore the reference to the "remain" can only mean the remaining block, which is Lot 237, which, according to paragraph 4 of the Claimant's sworn statement, "was a large area which was not subdivided".

34.	In my view, the terms of clause 1a) of the sale agreement as read with paragraph 3 of the Claimant's sworn statement filed on 22 December 2010 have made it clear to me that Lot 237 was included in the Agreement.

No mistake committed.

35.	Therefore, to the extent that the Claimant alleges that the registration of the 2nd Defendant as owner of Lot 237 was done by mistake because he had not agreed to sell Lot 237, I am not satisfied that such a mistake was made. I am satisfied that both the Claimant and Mr. Jones knew at the time they executed the Agreement that the blocks of land being sold included both the 12 smaller blocks as well as the larger, and yet to be sub-divided, Lot 237. It is clear to me that the phrase meant that, once acquired, Mr. Jones may sub-divide the block.

Did the Claimant execute the transfer document?

36.	I now turn to the transfer document. Although no date appears on the transfer to indicate the date on which the document was executed by the transferor, it is clear that it was executed on or before the 28 February 2001. As to whether he had signed the transfer document, the Claimant flatly denies that he did. His evidence is simply that he had never signed any transfer document in connection with the blocks of land sold under the Agreement.

37.	Mr. Joseph Pinita had given evidence on behalf of the Claimant. In brief, his evidence is that the transfer document was brought to him by Mr. Hikimae who asked him to sign the document. He asked Hikimae who signed the transfer and Hikimae told him it was signed by the Claimant. The Claimant was not present at that time and he did not see the Claimant sign the transfer. However, he signed the transfer document as witness because he knew the Claimant and he could also recognise the Claimant's signature. He said the signature of the transferor on the transfer document looked similar to that of the Claimant. He also believed that the Commissioner of Lands had given his consent to the transfer of the land. Furthermore, he thought everything was in order because the document was brought to him by Hikimae who was a lands officer at that time so he signed in order to facilitate the transfer. He agreed that he was the one who crossed out the parcel numbers on the left hand side of the 4th schedule of the transfer document. He crossed them out because the parcel numbers on the right hand side of the 4th schedule were the correct parcel numbers. He said when he signed the transfer document, the initials on the transfer documents were already there. He said that the initial above his two initials at the bottom of the 4th schedule of the transfer was that of Mr. Jones.

38.	Mr. Hikimae has also given evidence on behalf of the Claimant. In his evidence, he said it was Pinita who brought the transfer document to him on 28 February 2001 and asked him to sign. He said the Claimant was not present at that time. He said that when Pinita brought the transfer document to him, it was already signed by the transferor. He said he believed it was the Claimant who signed the transfer although he did not see him sign. He also said that he knew the Claimant well and was familiar with his signature. He said he signed because Pinita told him to sign and because the signature of the transferor on the transfer form was similar to that of the Claimant. He denied having prepared the transfer document and said he did not know who prepared the document.

39.	Mr. Jones had also given evidence. His evidence is that the transfer document was signed in his office on the date written on the transfer document, that is, 28 February 2001. He said Hikimae and the Claimant were there and they both signed the transfer. He said Hikimae and the Claimant came together to his office. He said that after the signing, it was Hikimae who took the transfer document. He said present in his office at the time of signing were himself, his wife, Mr. Hikimae and the Claimant. Unfortunately, the wife was not called to give evidence.

40.	Mr. Jones further said that it was the Claimant who applied to the Commissioner of Lands for consent to transfer the land. He said the consent came to him through the Claimant. The consent was for the transfer of the 13 plots of land. He said the Claimant had asked him if he could buy back the land but he refused. He said the Claimant became angry only when he learned that he (Claimant) had sold the land to Bako Construction.

41.	The evidence by Pinita and Hikimae clearly contradict each other. Both cannot be telling the truth. Credibility is an issue as far as these two witnesses are concerned.

42.	The evidence by the Claimant and Hikimae in relation to the signing of the transfer document also contradicts that of Mr. Jones. All three cannot be telling the truth. So, again, credibility is in issue as regards these three witnesses.

43.	Mr. Jones says that the transfer document was signed in his office by himself and the Claimant on the 28 February 2001. He said Hikimae was present and had witnessed the signing. He also said that Hikimae took the signed transfer document after the signing and both Hikimae and the Claimant then went to the Lands office.

44.	Surely, someone must have brought the transfer document to the Lands office on 28 February 2001. Neither Mr. Pinita nor Mr. Hikimae had said anything about how the transfer document came to be in the Lands office on that date. Mr. Pinita said it was Hikimae who brought the transfer document to him for signing while Hikimae said it was Pinita who brought the document to him. As stated earlier, both cannot be telling the truth.

45.	Having seen Pinita and Hikimae in the witness box and having heard their evidence, I am satisfied that Pinita was the truthful witness. Somebody must have brought the document to the Lands Department on the 28 February 2001 and I am satisfied it was Hikimae who did that. In paragraph 6 of his sworn statement, the Claimant said that they had agreed that Hikimae assist them as he was a lands officer doing private consultancy work. Both Pinita and Hikimae signed the document on the 28 February 2001 which was the same date the document was signed in Mr. Jones' office. According to Jones, it was Hikimae, a lands officer doing private consultancy work, who took the document after the signing on 28 February 2001. I prefer the evidence of Jones and Pinita to that of Hikimae and the Claimant.

46.	Mr. Jones was straight forward in his evidence and there is nothing in his demeanour that would raise any doubts as to the truthfulness of his evidence. I am satisfied that Mr. Hikimae had attended the signing of the transfer document in Mr. Jones' office on the 28 February 2001 as part of his private consultancy work. I am also satisfied that the Claimant was present at that signing and he did sign the transfer document. I am also satisfied it was Hikimae who brought the document to the Lands Department where he requested Pinita to sign as witness the signature of the Claimant. According to Pinita, he signed as witness because Hikimae told him that it was the Claimant who signed the transfer document. Furthermore, Pinita knew the Claimant well and was familiar with the Claimant's signature. Pinita said the signature looked similar to that of the Claimant. He believed it was the Claimant's signature, hence, a further reason for him signing as witness.

47.	On the basis of the evidence by Jones and Pinita, I am satisfied that the Claimant had signed the transfer document. I am also satisfied that it was Hikimae who brought the signed transfer document to the Lands Department on the 28 February 2001.

48.	Having found that the Claimant had signed the transfer document, the remaining question is whether the witnessing of the transfer document in the absence of the Claimant amounts to a mistake or fraud.

49.	That issue arose in Gallie v Lee ("Gallie") where Lord Wilberforce said:-

"A person who signs a document, and parts with it so that it may come into other hands, has a responsibility, that of the normal man of prudence, to take care what he signs, which, if neglected, prevented him from denying his liability under the document according to its tenor."

50.	The principle in Gallie was approved in Ika v Szetu ("Ika"). In that case, the Plaintiff had executed a blank transfer form, which had then been witnessed by the same Hikimae in this case in the absence of the Plaintiff. The Plaintiff did not deny that she had signed the transfer form. Her argument was simply that fraud was committed because the forms were not signed by Hikimae in her presence. The court rejected that argument and held that since she had signed the document, the fact that the document was not witnessed in her presence did not amount to fraud.

No fraud.

51.	This is exactly what happened in the present case. Pinita had signed the transfer form as witness in the absence of the Claimant. However, I have found that the Claimant did sign the transfer. By virtue of the authority in Gallie and Ika, the signing of the transfer by Pinita in the absence of the Claimant did not amount to fraud or mistake.

Judgment.

52.	I am not satisfied that the Claimant has proved his case on the balance of probabilities that mistake or fraud has been committed in relation to the registration of the title to Lot 237 in the names of the 2nd and 3rd Defendants. Accordingly, the claim by the Claimant is dismissed and judgment is entered for the 2nd and 3rd Defendants in terms of the remedies sought in their counter-claims. 

53.	The orders of the court are:-

[1] The claim by the Claimant is dismissed.

[2] Judgment is awarded in favour of the 2nd and 3rd Defendants on their counter claim.

[3] That the register be rectified by registering the 3rd Defendant as owner of the fix term estate in parcel number 191-052-237.

[4] Damages are awarded against the Claimant and the 4th, 5th and 6th Defendants for trespass.

[5] That the Claimant and the 4th, 5th and 6th Defendants remove their buildings from parcel number 191-052-237 within 90 days from the date of this judgment failing which the buildings shall become the properties of the 3rd Defendant absolutely.

[6] Except for the purpose of removing their buildings pursuant to order [5], the Claimant and the 4th, 5th and 6th Defendants, their servants, agents, relatives and any person claiming under them, are restrained from entering parcel number 191-052-237.

[7] The Claimant shall pay the costs of the 2nd and 3rd Defendants to be taxed if not agreed.

[8] The 1st, 4th, 5th and 6th Defendants shall bear their own costs.

THE COURT 

James Apaniai
Puisne Judge