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Waitara v Rarai [2017] SBHC 83; HCSI-CC 215 of 2014 (20 October 2017)

ANGELO WAITARA -V- ADRIAN RARAI
(Claimant) (Defendant)

HIGH COURT OF SOLOMON ISLANDS
(BROWN J)

Civil Case No. 215 of 2014

Date of Hearing: 3 August 2017
Date of Judgment: 20 October 2017

Dominion Lawyers for Claimant
Honiara Attorneys-at-Law Defendant

Brown J:

Application for eviction of fixed term estate land and cross application for rectification of land register and damages.

The claimant seeks vacant possession of a corner shop at Talise, Honiara, standing on land parcel FTE number 191 – 034 – 169 (the shop). The defendant denies the claim and by counterclaim seeks $188,000 on the ground that rental money and other outgoings paid by the defendant were monies unlawfully accepted by the claimant who had no title as owner of the land and no right to lease the shop. As well the defendant seeks by counterclaim in default of payment of monies claimed, rectification of registration of the name of the claimant as owner of the land by the substitution of his name on the register of ownership.

The facts are largely not in dispute. The dispute arises over the knowledge and intent of the claimant who seeks to attribute to the defendant misfeasance over attempts by the defendant to seek a grant from the Commissioner of lands when it became apparent that the land had not in fact been registered in the claimant’s name until 10 June 2014,. The facts leading to the claimants registration as owner was set out in the claimants closing submissions-

“3. Prior to registration on 31^st of October 2005 the claimant submitted an application to the Commissioner of lands for the subject land.

4. On seventh of February 2006 the Commissioner approved the claimants application.

5. On 23^rd of May 2006 the Commissioner made an offer of a grant of a 50 year fixed term estate in the subject land to the claim that subject to the payment of the total offer fee of $2982.70.

6. Between 20 June 2006 on 8 September 2006 the claimant accepted the offer by paying the total offer fee of $2982.70.

7. In 2009 the following payment of the offer fees, the claimant constructive a corner shop on the subject land.

13. On 10^th of June 2014 the claimant obtained registration of the subject land.”

The delay between the grant (conditional upon payment of the fees to the Commissioner, fees paid without dispute) and registration of the application for registration of the fixed term estate transfer (section 134 of the Land and Titles Act) would appear to have been caused by the claimants in- action, for the obligation to register the instrument rests with the claimant. Such instrument of transfer is in evidence and has the requisite stamp from the Commissioner of Stamp duties.

To adopt the ratio of the Court of Appeal-

“3. This land is registered land and therefore the protections set out in the Land Titles Act (Cap 133) apply. Unless noted in the register of lands or falling within the provisions of section 114 of Cap. 133 (overriding interest) an interest is not capable of being enforced [sic]. Section 118 (2) deals with a bona fide purchaser for value where the seller is a trustee and protects that purchaser. Section 218 (3) provides protection to a purchaser on a sale by court order.”^[1]

The defendant by counsel’s argument bases his claim in terms of s. 114, to an interest in land, by way of his application to the Commissioner of lands of 13 January 2013, for a grant of the subject land and the Commissioners subsequent offer to the defendant of a 50 year lease of the estate in the land on 15 May 2015. Later on in this judgement I touch on the documents that go to make up this claim. This exchange of communications has no basis in law or equity to undermine the protection afforded the registered owner. In the absence of fraud or mistake, registration affords this claimant protection as the registered owner, irrespective of acts by the Commissioner relied upon by the defendant.

No fraud or mistake leading to the registration of this claimant has been shown, although the claimant has argued that the defendant was aware of the earlier grant in favour of the claimant when the defendant sought to have the land granted to him. I am satisfied that was the case, when I read the material of the defendant furnished on trial. A presumption arises, when the defendant agreed to take over the corner shop in February 2010 that this shop was the property of the claimant, who was in occupation at that time. I accept that presumption for the possession of the premises changed in consideration of payment of rent in accordance with an oral agreement for lease, with, after a period of reduced rent recognising the cost of improvements carried out by the defendant, an increased rent from 2013 until notice of eviction given by the claimant to the defendant on 20 June 2014

The rights of the defendant in actual occupation of the land was in terms and reliant on the oral agreement for lease, terminated by the notice of 20 June 2014. No rights may arise contrary to those of the claimant’s interest as owner nor have any subsisting rights as a tenant been shown after that notice of eviction.

The oral agreement between the claimant and the defendant may be seen to be a periodic tenancy for in this case no registered lease had been made between the parties. Incidents of such periodic tendencies include on the lessors part, a warranty that he has a good right to grant the lease and other undertakings (s. 147) going to protect the lessees right to remain. Payment of rent by the defendant in the accepted circumstances, reflects the periodic tenancy as well as an underlying contract between the parties for in the cross-claim, monies paid the claimant are claimed by the defendant as monies illegally obtained.

I accept the claimant was lawfully entitled to monies under the oral agreement for lease for the claimant had given possession of the premises to the defendant in accordance with the contract in consideration for the rent moneys to be paid and they have been as evidenced by the defendant’s claim to reimbursement. Registration of title (post-dated grant) is absolute and may not be questioned except in the case of fraud in obtaining it. It consequently follows that at the time of the commencement of these proceedings, the claimant is entitled to Institute proceedings for ejectment, for by oral contract (the agreement for lease) notice to quit may rely on a period determined by the frequency of the rental payments or failure to pay and no issue arises in relation to any period of notice in this case.

The defendant has not been shown entitled to the land and any right to remain fails in his defence by way of the claim for possession. In the absence of proper forfeiture of grant (section 136) by the Commissioner and registration of subsequent grant for instance by the Commissioner to some other person, this claimant’s legal right to possession follows registration as owner of the fixed term estate and his action for ejectment and is unaffected by such delay in registration^[2].

Much evidence has been advanced by both parties to show, on the claimant’s case, the mala fides of the defendant, and on that of the defendant, the fact that the claimant lacked the right to lease. The fact of registration of the claimant has made that right to lease the shop absolute. There has been no misrepresentation by the claimant of his standing, (to claim ownership in the face of his grant and the fact of his possession) to be able to enter into this oral agreement for lease, a contract which in any event is severable and enforceable as such as well as the parole agreement to be implied as a periodic tenancy under the Act, brought into operation by the fact of the owners registered interest.

For caution I should say I find that the supposed surrender of the grant in favour of the defendant Adrian Rarai (being director of ADSCO Holdings)^[3] is not that of the claimant but rather a letter to the Commissioner of lands to practice a fraud on Angelo Waitara, in an attempt to benefit Adrian Rarai and ADSCO Holdings, for (even without the letter of 30 April 2014 to the Commissioner) the defendant had adopted various other documents by ADSCO Holdings (dated 13 January 2013)^[4] and associated offices of the Commissioner of lands in support of ADSCO’s request for a grant of the subject land.

It is illogical for the claimant to surrender his grant of the fixed term estate to the defendant without consideration for such act, when the claimant may have expected to have continued to benefit under the existing lease arrangements. I accept the denial by Angelo Waitara that the document, “AW-6” is his document. I find mala fides in the defendant who now seeks to avoid the oral agreement or contract in relation to the lease of the shop. For all these reasons I am satisfied the claimant has proved his case in relation to the claim for possession and in relation to the defendant’s cross-claim.

I order judgment be entered against the defendant in terms of the orders sought in the claim. The defendant’s cross-claim is dismissed with costs in favour of the claimant. The caveat as it affects parcel no. 191-034-169 shall be removed by the Registrar of Titles since no caveatable interest is with the defendant.

______________________
Brown J

^[1] SICOA CAC no. 01 of 2017;
^[2] Mills v Lewis [1985] 3 BPR 9421 {NSW Sup. Ct. C.A.]
^[3] “AW-6” to sworn statement of Angelo Waitara dated 16/07/14
^[4] “AR-3” to statement of Adrian Rarai dated 9/05/17