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Tekea v Solomon Connect Ltd [2024] SBHC 168; HCSI-CC 393 of 2018 (18 October 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 393 of 2018, 428 of 2019

BETWEEN:

TANGAROA TEKEA, TOMA TEKEA, RITANG BAURO & TEKANIWI WAKETA
Claimant

AND:

SOLOMON CONNECT LIMITED
First Defendant

AND:

HANS MARGOZZI.
Second Defendant

Date of Hearing: 4 October 2024
Date of Ruling: 18 October 2024

For the Claimant: Kwaiga L
For the First & Second Defendants: Fakarii C

JUDGMENT

Introduction

There are two claims before the Court, one by the Claimants in CC 393 of 2018 and a claim in CC 428 of 2019 by the First Defendant in CC 393 of 2018. As the matters involved the same parties, and the same issues, the two matters were consolidated.

A trial in both matters was conducted on 3^rd October 2024. At the trial counsel for the Claimants in CC 393 of 2018 and First Defendants in CC 428 of 2019 was not present in Court without any notice given to the Court, informing the Court why they would not be present at the trial. In view of this Court proceeded with the trial in absence of counsel for the Claimants in CC 393 of 2018 and the Defendants in CC 428 of 2019. Counsel for the parties all agreed that the trial will proceed by way of written submission and Court direction to that effect was perfect on 17^th September 2024. Counsel for the Claimant has however filed a written submission in support of the Claimants claim.

While counsel for the Claimants made submission on four issues, having considered the agreed facts and issues in both matters I noted that the main issue is the validity of the Notice before forfeiture of parcel No. 097-008-0001 and the subsequent lease of the forfeiture property to the second Defendant in CC 428 of 2019.

In his submission counsel Fakarii for the First, Second and Third Defendants in CC 393 of 2018 and Claimant in CC 428 of 2019 submit that, in their defence to the Amended Claim, the First and Second Defendants denied the Claimant’s legal entitlement to the Orders on the basis that the Claimants obtained forfeiture of Leasehold Title in PN 097-008-0001 was unlawful on the basis that:-

1. It breaches the Lands & Titles Act, in that no proper Notice was given to the First and Second Defendants before the Lease title was forfeited after 14 days.
2. The Defendants did not breach any of the terms and conditions of the lease Agreement to warrant a forfeiture of the lease title.

100. Since there was no proper Notice given to the Defendants, the forfeiture process is unlawful, therefore land registration of the lease to the Second Claimant is a mistake.

Law and Procedure on Forfeiture of Registration Title

Section 138 and 139 of the Lands & Title Act [Cap 133], provides the process by which a registered land can be forfeiture by the Commissioner of lands.

138. The Commissioner shall not be entitled to exercise the right of forfeiture until he has served on the owner of the estate and on every other person shown by the land register to be interested a notice

(a) Specifying the particular breach complained of: and 11 of 1970 Sched
(b) If the breach is capable of remedy, requiring the owner to remedy the breach within such reasonable period as is specified in the notice; and
(c) In any case other than non-payment of rent, requiring the owner to make compensation in money for the breach, and the owner has failed to remedy the breach within a reasonable time thereafter, if it is capable of remedy, and to make reasonable compensation in money.

The relevant section to the issue in this case is section 155 of the Land and Title Act, Cap 133, Section 155 (1) states:

(1)Subject to the provisions of section 157 and to any provisions to the contrary in the lease, the lessor shall have the right to forfeit the lease if the lease commits any breach of, or omits to perform, any agreement or obligation on his part expressed or implied in the lease.

(2) The right of forfeiture may be-

(a) Exercised, where neither the lessee nor any person claiming through or under him in occupation of the land comprised in the lease, by entering upon and remaining in possession of the land: or
(b) Enforced by action in the High Court.

(3) The right of forfeiture shall be taken to have been waived if:

(a) The lessor accepts rent which has become due since the breach of the agreement or obligation which entitled the lessor to forfeiture the lease or has by any other positive act shown in intention to treat the lease as subsisting: and
(b) The lessor is, or should by reasonable diligence have become, aware of the commission of the breach;

Provided that the acceptance of rent after the lessor his commenced in action in the Court under subsection (2) shall not operate as a waiver.

Effect of Section 155 of the LTA.

Section 155 refer to section 157 which says, the provisions of section 138 and 139 apply mutatis mutandis means that the provision of section 138 and 139 applies to all lease. In this respect, the provision as to forfeiture of leases by private individual must also comply with the provision of section 138 of the Lands and Title Act (LTA).

In the present case counsel, for the Defendants in CC 393 of 2018, submit that there was no proper notice of forfeiture given to the Defendants. He submit that the letter of 4^th August 2018 does not notify the Defendants that the land will be forfeited after 14 days and the Defendants breach any of the terms and conditions of the lease Agreement to warrant a forfeiture of the lease title.

Counsel for the third Defendant in CC 428 of 2019 submission also support the submission of counsel for the First and Second Defendant in CC 393 of 2018. Counsel for the Third Defendant submit that the Claimants in CC 393 of 2018 and First Defendants in CC 428 of 2019 did not comply with section 138 as read with section 157 of the Lands and Title Act.

Conclusion

I had viewed the letter by Solicitor for the Claimants in CC 393 of 2018, dated 4th August 2018 and find that the lengthy letter does not amount to a Notice before forfeiture. I say this, because the letter did not informed the Defendants of any breaches of the lease agreement and tell the Defendant and give notice that they will forfeit the lease property within 14 days.

The failure of the Claimant is a breach of section 155 and 157 of the LTA, which sets out what the notice before forfeiture should contained. The letter of 4^th August 2018 does not notify the Defendants that the land will be forfeited after 14 days and of the particular breach complained of and if the breach is capable of remedy, that the owner remedy the breach within such a reasonable period as specified in the notice;

I have the opportunity to read the cases authorities referred by counsels. I had also consider the evidence before the Court and submissions of counsels. After considering all the materials before the Court, the Court find that the Claimants in CC 393 of 2018 did not issue to the Defendants a valid notice before forfeiture.

Having found as such, the Court dismissed the claim in CC 393 of 2018 and give judgment for the Claimants in CC 428 of 2019 and grant the order sought. I so order. Cost for the Defendants in CC 393 of 2018 and Claimants in CC 428 of 2019, to be taxed if not agreed.

THE COURT
Emmanuel Kouhota
Puisne Judge