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Li Ping Ma v Commissioner of Lands [2020] SBHC 62; HCSI-CC 254 of 2018 (13 July 2020)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 254 of 2018

BETWEEN

LI PING MA
Claimant

AND:

COMMISSIONER OF LANDS
First Defendant

REGISTRAR OF TITLES
Second Defendant

SAMA KALEPO O’Brien
Third Defendant

Final Date of submissions: 8 June 2020
Date of Judgment: 13 August 2020

Mr. A Radclyffe for the Claimant
Mr. S. Banuve for the First and Second Defendant
Mr. W. Rano for the Third Defendant

JUDGMENT

Faukona PJ: This claim is in Category A, and was filed by the Claimant or 2^nd August 2018. There were two major reliefs sought. One is a relief against forfeiture of the FTE in PN.098-011-46 and second is the relief for rectification of the register of the FTE in favor of the Claimant on the ground of mistake.

2. The 1^st and 2^nd Defendants have not filed a defense or even filed any sworn statement.
3. The 3^rd Defendant did file a defense and counter claim of which the Claimant had filed a reply and answer to the counterclaim. The 3^rd defendant did not file any sworn statement either to support her defense.
4. Apparently, as it seems, the third Defendant has no defense to the claim at all. The defense she filed merely pleads facts but there was no evidence by way of a sworn statement to support the facts pleaded. The only issue raised by her is that the claim is time barred.
5. In submissions the Counsel for the first Defendant did not wish to pursue that issue. But submits that the forfeiture process had been completed and a certificate to title shows re-entry which was registered in the register.
6. What the third Defendant has ignored, and which was not disputed by the first and second Defendants is that the notice before forfeiture issued by the Commissioner of Lands on 8^th February 2017, was eventually cancelled by him when he realized it was issued in error. Consequently that was affirmed by his letter of 22^nd March 2017. That letter was copied to the Registrar of Titles but was dated after the re-entry was noted in the FTE register on 16^th March 2017.
7. Legally, the Registrar of Titles had no right to ignore the cancellation of the notice before forfeiture.
8. Therefore it cannot be argued that S.139 (2) of the Land and Titles Act applies because the notice before forfeiture was valid, that section only applies to valid notice.
9. It must be upheld that the forfeiture of the Claimant’s FTE was done without a notice and with no grounds. Hence an obvious result can be deduced that the grant of the FTE to the third Defendant was done by mistake and ought to be rectified.
10. On the issue of time bar, that cannot be determined on the grand that the third Defendant had failed to pursue her case. Her Counsel had failed to file submissions as required by the order of Court, and the issue of time bar was never argued in Court though raised at pleadings.
11. In any event the Claimant became aware of the registration of the third defendant in May 2018, and had acted instantly by instructing her Counsel to write to the first Defendant, see letter dated 23^rd May 2018, and then filed their claim on 2^nd August 2018. Obviously the Claimant had acted within three months after having knowledge of the re-entry was registered. Therefore there was no time bar as the count will definitely start from date the Claimant aware of the re-entry.
12. From those analysis I must therefore grant the reliefs sought.

Orders:

1. Order that the Claimant is hereby relieved against the forfeiture of the FTE in Parcel No. 098-011-46.
2. Order rectification of the register for the fixed term estate in favor of the Claimant on the ground of mistake.
3. Costs incidental to this hearing is to be paid by all the Defendants to the Claimant.

The Court.