Noro v Saki [2016] SBCA 18; SICOA-CAC 11 of 2016 (14 October 2016)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	APPEAL FROM JUDGMENT OF THE HIGH COURT OF SOLOMON ISLANDS (KENIAPISIA J)
COURT FILE NUMBER:	CIVIL APPEAL CASE NO. 11 OF 2016 (ON APPEAL FROM HIGH COURT CIVIL CASE NO. 90 OF 2013)
DATE OF HEARING:	11 OCTOBER 2016
DATE OF JUDGMENT:	14 OCTOBER 2016
THE COURT:	GOLDSBROUGH P LUNABEK JA YOUNG JA
PARTIES:	JOSEPH NORO AND ORS APPELLANT - V - JOHN SAKI AND ORS 1st RESPONDENT ATTORNEY GENERAL 2nd RESPONDENT
ADVOCATES: APPELLANT: RESPONDENT:	MR NIMEPO, LIGHT LAWYERS MR RANO, RANO & COMPANY MRS MAEFITI-SOMA, ATTORNEY GENERAL
KEY WORDS:
EX TEMPORE/RESERVED:
ALLOWED/DISMISSED:
PAGES:	1-5

JUDGMENT OF THE COURT

Introduction

1. Mr Noro and others (the Claimants) say that the land contained in parcel 192-008-90 was transferred to the first respondents, John and Jenny Saki either by mistake or fraud.In 2013, they issued proceedings in the High Court seeking rectification of the title by declaring them to be the registered owners.
   
2. The Saki’s applied for summary judgment against the Appellants case and/or an order striking out the claimant’s proceedings.The Judge in the High Court refused the application for summary judgment but struck out the Noro’s claim.
   
3. Mr Noro has appealed to this Court. He says that there was a cause of action set out in his pleadings and the court therefore was wrong to strike out his claim.
   

Background Facts

4. The Appellants case was that the land in question was customary land owned by the Lunggasubtribe which is represented by the claimant/appellant. The Government later compulsorily took this land.The land was then registered as title 192-008-90. The Government then decided the land was no longer needed by them. The Appellants asked that the land be returned to them on the basis of the government policy that surplus land would always be offered back to the original owners. However, the government transferred the land to Mr and Mrs Saki.
   
5. The Appellants say that the Sakis falsely claimed they had previously owned the land and that the Sakis had paid a substantial amount of money to the Commissioner of Land to acquired title.

The High Court Judgment

6. The Judge identified the test on an application to strike out as “the Court looks only at the claim and considers the facts asserted in the statement of the case and then decides whether, assuming that the asserted facts are true, there is a viable cause of action against the defendant for the relief sought.”
   
   7. The Judge concluded that Summary Judgment should not be granted as there were issues to be determined at trial, including whether there was a government policy on the return of land, whose land it had originally been and proof of fraud.
      
8. The Judge then turned to consider the strike out application. The Judge said he considered the strike out application on the basis of whether the facts in the claim disclosed an arguable case.He concluded that there was doubt about the government policy of returning land to previousland owners and doubted whether that policy was “enforceable in law.”He considered that the claim would not succeed because the return of the land principle did not apply to registered land (although there was no evidence of this) only to customary land.
   

Discussion

9. We are satisfied that although the Judge identified the correct test in deciding whether to strike out a claim he did not apply the test correctly in this case.
   
10. As the Judge identified on an application to strike out based on an allegation that the claim revealed no cause of action, the Judge must assume the claim can be proved. The Judge must then ask – assuming the Claimant can prove all of these allegations, does the claimant have a sustainable cause of action? With these facts provedcould the claimant succeed? If the answer is yes, the claim cannot be struck out.
    
    11. In this case, the Judge asked himself the question whether the claim disclosed an arguable case. This is an evidence based test appropriate to Summary Judgment applications not to strike out applications.
        
    12. We are satisfied the claim disclosed a cause of action in mistake and fraud. As we have noted the claim was based on the proposition that the Government was obliged to offer the land back to the claimants in the circumstances. The claim asserted the failure to do so was either through mistake or fraud both grounds on which rectification of title can be ordered. A viable cause of action was therefore identified.
        
13. One final comment. In this case, once the Judge had rejected the Summary Judgment application, it is difficult to see how the strike out application could have been granted. It is preferable for the High Court, when faced with strike out and summary judgment applications, to consider the strike out application, which has a narrow focus, first.
    
14. Summary
    

(a) The Judge was wrong to strike out the claim;

(b) The claim is reinstated and returned to the High Court for trial;

(c) There will be an order for standard costs in favour of the appellants’ payable by the first respondents, such costs to be agreed or assessed by the Registrar.

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Goldsbrough P

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Lunabek JA

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Young JA