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Pari Development Co Ltd v Commissioner for Lands [2025] SBHC 18; HCSI-CC 318 of 2021 (14 March 2025)

HIGH COURT OF SOLOMON ISLANDS


Case name:
Pari Development Co Ltd v Commissioner of Lands


Citation:


Date of decision:
14 March 2025


Parties:
Pari Development Company Limited v Commissioner of Lands, Registrar of Titles


Date of hearing:
24 October 2023


Court file number(s):
318 of 2021


Jurisdiction:
Civil


Place of delivery:



Judge(s):
Lawry; PJ


On appeal from:


Order:
1. Judgment for the First and Second Defendants.
2. As the Claimant no longer exists as a result of being de-registered no order is made for costs.


Representation:
Mr. B Titiulu for the Claimant
Mr. E Waiwaki for the First and Second Defendants


Catchwords:



Words and phrases:


Legislation cited:
Land and Titles Act as Amended in 2014 136 (1) (c), S 139, 136 (3) (a) and (b), S 138
Sale of Liquor Act [cap 144], Dangerous Drug Act [cap 98]
Companies Act 2009, S 146 (1)
Local Government Act (Cap 14)
Public Health Ordinance 1970


Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION


Civil Case No. 318 of 2021


BETWEEN


PARI DEVELOPMENT COMPANY LIMITED
Claimant


AND:


COMMISSIONER OF LANDS
First Defendant


AND:


REGISTRAR OF TITLES
Second Defendant


Date of Hearing: 24 October 2023
Date of Hearing: 14 March 2025


Mr. B Titiulu for the Claimant
Mr. E Waiwaki for the First and Second Defendant

JUDGMENT

  1. Between 2 December 2016 and 23 January 2018 the Commissioner of Lands granted seven parcels of land to the Claimant that are relevant to these proceedings. Those parcels were in the area of Noro in Western Province. Each parcel was a fixed term estate. Each grant instrument required the Claimant to undertake a specific development within three years of the grant.
  2. The requirement to develop the land was consistent with section 136(1) (c) of the Land and Titles Act as amended in 2014. Section 136 provides as follows:
  3. The parcels of land granted to the Claimant were:
  4. Parcel 098-011-144 was subsequently subdivided into two parcels being: 098-011-168 and 098-011-169. Parcel 098-009-060 was also subdivided into two parcels being: 098-009-064 and 098-009-065.
  5. The requirement to develop was set out in clause 6 of the First Schedule of each grant. The grant for parcels 098-009-052, 098-009-054 and 098-011-145 contained the following at clause 6 of the First Schedule:
  6. The Grantor signed the grant for those three parcels on 3 January 2017. The First Schedule of the grant instrument contained the following at clause 19.
  7. The grant instrument for parcel 098-012-545 recorded the following at clause 6 of the First Schedule:
Clause 15 of the First Schedule provided:
The grant instrument records it was signed by the Grantor on the 23rd day of an unnamed month in 2018. The instrument was registered on 25 January 2018 so the month of signing by the Grantor could only have been January 2018.
  1. The grant instrument for parcel 098-016-001 recorded the following at clause 6 of the First Schedule.
Clause 18 of the grant instrument provided as follows:
The date the Grantor signed the grant instrument is recorded as 2 December 2016.
  1. The grant instrument for parcel 098-011-144 records the following at clause 6 of the First Schedule.
At clause 18 of the First Schedule the grant instrument records the following:
The Grantee is recorded as having signed the grant instrument on the 23rd of an unstated month in 2018. The instrument was registered on 24 January 2018 so the signing by the Grantor must have been on 23 January 2018.
  1. The grant instrument for parcel 098-009-060 recorded the following at clause 6 of the First Schedule:
At clause 19 of the First Schedule the following is recorded:
The grant instrument was signed on 19 January 2018 and registered on 24 January 2018.
  1. It is common ground that the Claimant has not developed any of the parcels of land in accordance with either the grant instrument or with section 136(1) (c) of the Land and Titles Act.
  2. The unchallenged evidence of the Commissioner of Lands was that the Claimant sold the fixed term estates 098-009-064, and 098-011-168 to other private interests.
  3. On 4 March 2021 the Commissioner gave notice to the Claimant that parcels 098-009-52, 098-009-54, 098-011-145, 098-012-545, 098-016-001, 098-011-168, 098-011-169, 098-009-64 and 098-009-65 would be forfeited by the Commissioner after the period of one (1) month. The notice to the Claimant is recorded as follows:
  4. The Claimant did not challenge the notice before forfeiture during the one month period after service of the notice before forfeiture.
  5. On 20 May 2021 the Commissioner completed the forfeiture process by way of re-entry. The notice of re-entry records re-entry and taking possession of parcels:
  6. The notice of re-entry is set out as follows:
  7. There is no issue about service of the Notice before Forfeiture. There is no issue about the service of the Notice of Re-Entry. There had been negotiations between the Claimant and the Commissioner between the service of the notice before forfeiture and the forfeiture of the above parcels.
  8. In the Claim it is alleged that the Commissioner waived the right of forfeiture in accordance with section 136(3) (a) and (b). The right to forfeiture is taken to have been waived if the requirements of both (a) and (b) are met.
  9. No evidence was led about when the Commissioner became aware or with due diligence should have become aware of the breaches of clause 6 of the First Schedule for each grant. Logically there needs to be a breach before the Commissioner becomes aware of the breach. The effect of both paragraphs (b) and (a) being read together are that once the Commissioner has become aware of the breach if he continues to treat the estate as subsisting then he is deemed to have waived his right to forfeiture. The Claimant has alleged that by entering into negotiations with the Claimant, the Commissioner has treated the estate as subsisting.
  10. When there has been an alleged breach of a requirement of the grant it would be unusual for the parties to not enter into some negotiations. That does not mean that the estate subsists. It rather means that the Commissioner may agree to not proceed with the forfeiture if certain conditions are met. The emails between the parties make it clear that there were conditions that would need to be met before the Commissioner could be persuaded to not proceed with forfeiture. The evidence was that those conditions were not met. For these reasons the Claimant has not shown that the Commissioner has waived his right to forfeit the estates.
  11. The Claimant then relies on section 138 of the Land and Titles Act which provides:
  12. The Claimant has not challenged that everyone entitled to be served has been served. The Claimant does not challenge that the particular breach claimed has been identified. It claims however that the breach is capable of remedy and in accordance with paragraph (b), it pleads that the Notice before Forfeiture was required to give it notice of a nominated period within which the Claimant should remedy the breach. Secondly the Claimant submits that as the breach alleged was not for non-payment of rent the Commissioner was required to seek compensation from the Claimant and to include the demand for compensation in the Notice.
  13. The Claimant is correct that section 138 of the Land and Titles Act requires the notice before forfeiture to deal with three issues (a) specifying the breach (b) requiring the breach to be remedied within a specified “reasonable period” if the breach is capable of remedy; and (c) requiring the owner to make compensation for the breach. The right of forfeiture arises once the owner fails to remedy the breach within the specified “reasonable period of time” and fails to pay reasonable compensation. The Commissioner did not address either paragraph (b) or (c) in the notice. He gave evidence that in his view the breach was not capable of remedy with a reasonable period of time.
  14. The Commissioner clearly turned his mind to the question ‘was the breach capable of remedy?’ Relevant to this issue was whether the Claimant had the will or the means to do so. Buildings were required to be erected on the parcels of land. The total cost of such buildings was a minimum of $37,000,000.00 for the parcels identified. The Claimant had shown no capacity nor desire to erect such buildings on the land. The Claimant was also in apparent breach of the conditions by taking steps to transfer some of that land to others. That however is not the breach alleged to justify forfeiture.
  15. In paragraph (b) the Commissioner is only required to include the reasonable period of time to remedy the breach identified if it is capable of remedy. Given the lack of steps taken by the Claimant, I accept the Commissioner’s assessment that the breach was not capable of remedy if a further reasonable period was allowed. The Claimant had not even taken the first steps to have the Commissioner approve what the Claimant proposed erecting on each parcel of land. The argument by the Claimant that Western Provincial Government does not have a town plan for Noro does not assist the Claimant. It supports the assessment of the Commissioner.
  16. Concerning paragraph (c) of section 138, on the evidence before me there was no loss suffered by the Commissioner to form a basis for a claim for compensation. This was not a situation where work would be required to put the Commissioner back in the situation that would have existed had the breach not occurred. Not including a claim for compensation is to the benefit of the Claimant. The effect is that any compensation sought is nil. If the claim for compensation had been for $1.00 would that make any difference for a Claimant who is not required to pay compensation? It would not be logical for an otherwise valid notice to become invalid simply because the Claimant was not being penalised. The notice before forfeiture was clear. It gave the Claimant one month to organise itself or try to negotiate with the Commissioner. It was on notice from the Commissioner that the Commissioner intended to forfeit the estates following the negotiations.
  17. The notice before forfeiture then could have set out that no compensation was required to be paid by the Claimant and the included a statement that the breach was not capable of remedy. Had it done so the position in which the Claimant found itself would be no different.
  18. In the notice of re-entry the Commissioner’s basis for re-entering the parcels of land was said to be the failure to comply with the notice before forfeiture. It did not say that re-entry was because of the alleged breach to develop each parcel as required by both the Land and Titles Act and the grant documents. It is true that the notice before forfeiture did not make any requirement of the Claimant so there was nothing for the Claimant to comply with. Had the notice before forfeiture required remedying the breach within a reasonable period of time, the notice of re-entry may have made sense. As it is, it does not.
  19. After the notice before forfeiture was served there had been discussions between the Claimant and the Commissioner. Those discussions did not reach the point of changing the decision to forfeit the estates. The Claimant knew that the Commissioner intended to re-enter the land after one month. The notice of re-entry confirmed what the Claimant already knew. More care should have been taken with both notices but neither notice prejudiced the Claimant such that the interests of justice require the estates forfeited to the Commissioner to be returned to the Claimant.
  20. On the evidence before me some of the parcels of land granted to the Claimant required payment of a premium. The Claimant was not entitled to be registered as the owner of a fixed term estate unless the Claimant had satisfied the Registrar of Titles that the premium had been paid. At least so far as 098-016-001 is concerned, the premium of $529,731.00 was not paid. That is different from failure to pay the land rent. That parcel should not have been transferred to the Claimant in the first place so it would be unjust to rectify the title for that parcel.
  21. Counsel for the Claimant has asked that I ignore the receipts for proposed purchases of land annexed to the sworn statement of the Commissioner on the basis that no evidence was called from any of those persons who are alleged to have made payments to the Claimant for parcels of land. The sales of that land was understandably a concern for the Commissioner but I have put to one side those allegations of sales in coming to my conclusions in this matter. Having said that, if the Commissioner is satisfied that the Claimant initiated sales of land that it knew were to be forfeited, that would amount to a serious fraud such that the Commissioner would be expected to place the matter before the Commissioner of police for investigation.
  22. A further issue has become apparent from the decision of this Court involving the same parties and to which there was reference in the trial. The Chief Justice recorded that the Claimant was no longer a registered company. He discussed the effect of de-registration. In submissions filed on 24 May 2024 there was a certificate from the Registrar of Companies dated 22 May 2024 showing that the Claimant was de-registered on 1 November 2023. It was still de-registered by 22 May 2024. In these proceedings the submission of counsel were required to be filed by 10 November 2023. None were received from the Claimant. Submissions from the Claimant were filed on 29 December 2024. Counsel for the First and Second Defendants has quite properly objected to the Court receiving such submissions as there was no application to extend time to file them. Counsel for the Claimant had the benefit of having submissions from the Defendants for seven weeks before filing those submissions. Closing address were to have been on 10 November 2023 if counsel wished to make oral submissions. By the time submissions were due the Claimant could give no instructions to counsel as the Claimant had ceased to exist. In addition section 146(1) of the Companies Act 2009 provides:
  23. The effect of the de-registration is that regardless of any defect in the notice before forfeiture and the notice of re-entry the fact that the Claimant was deregistered and remained deregistered for perhaps five months, the land held by the Claimant would revert to the Crown in any event. The land could not be transferred to the Claimant as sought in the claim. For these reasons alone the Claimant is not entitled to the relief sought. Even if that were not so, I am satisfied for the reasons set out above that the interests of justice are served by refusing the relief sought by the Claimant.

Orders

  1. Judgment for the First and Second Defendants.
  2. As the Claimant no longer exists as a result of being de-registered no order is made for costs.

By the Court
Hon. Justice Howard Lawry
Puisne Judge

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