Maebata v Maena [2018] SBCA 11; SICOA-CAC 20 of 2017 (11 May 2018)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of The High Court of Solomon Islands (Brown J)
COURT FILE NUMBER:	Civil Appeal Case No.20 of 2017 (On Appeal from High Court Civil Case No. CC 256 of 2016)
DATE OF HEARING:	2 May 2018
DATE OF JUDGMENT:	11 May 2018
THE COURT:	Goldsbrough P Hansen JA Young JA
PARTIES: APPELLANT FIRST RESPONDENT: SECOND RESPONDENT: THIRD RESPONDENT:	GEORGE MAEBATA -V- MICHAEL MAENA AND LIKO ASSOCIATION LIMITED AND SOLOMON SHEET STEEL LIMITED
ADVOCATES: APPELLANT: RESPONDENT:	D. Nimepo J Sullivan QC N Quan
KEY WORDS:	Preliminary questions; summary judgment for defendants
EXTEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED	Dismissed as against the 3rd respondent Allowed in part regarding 1st and 2nd respondents
PAGES	1-9

1. This is an appeal against the decision of Brown J dated 13 July 2017, who, on an application by the third respondents to determine a preliminary point of law and/or summary judgment found in their favour. The judge found in favour of the third respondent and granted an order dismissing the appellant’s claim against all respondents. We note the first and second respondents took no steps in these proceedings

Background facts

2. The dispute involves land at Mbokonavera Junction. It relates to part of the land in parcel 191-024-178. The appellant claims that he purchased this portion of land from the respondents in September 2003. He alleges that he made instalment payments to the respondents from then on. Receipts, signed by the first respondent on behalf of the second respondent, are in evidence showing payments in cash and kind until the 7th October 2006. A further document is in evidence. This only carries the signature of the appellant. It records the agreed payment for the land was $12000.00. It lists instalments totalling $12100.00 of which $100.00 was said to be a compliment. It is dated at the top 08/8/07 and at the bottom 10/10/14. There is a place for the president of the second respondent to sign a consent to the transfer of the subdivision to the appellant. The appellant says he instructed a surveyor to prepare a subdivision plan around the same time. He says he started building a commercial shopping complex in 2003 and 2004 which consists of three shops that have been in operation after in 2004. In 2008 he obtained a land excavation permission from the Honiara City Council.
3. He alleges that without his knowledge the first and second respondents sold the whole of 191-024-178 to the third respondent, which included the part-lot that he said he had purchased. It is alleged that the third respondent had full knowledge of the building on the property and subdivision, and, that third respondent should have inquired about the status of the land and buildings because of it. The appellant refers to a letter from the third respondent to the Commissioner of Lands dated 2 December 2014. He submits the effect of this letter is to recognise his right to a subdivision of the land he claims he bought.
4. The position of the third respondent is that it was a purchaser for value without notice of any claim by the appellant.
5. On the basis of the appellant’s claim, the appellant sought specific performance against the first and second respondent, or alternatively damages in the sum of $700,000; an order that all respondents facilitate the registration of the portion of the land that he says he bought; and finally, rectification by the Register of Titles on the basis of fraud and mistake.
6. As noted the first and second respondents have taken no steps in this matter. On 7 June 2017 the third respondent applied for an order that the claim and relief sought against it be dismissed on the grounds that they were statute-barred and, therefore, there was no justiciable matter before the Court. Secondly, that the relief for specific performance could not be granted, as the title to the land in question was vested by registration in the third respondent. Finally, no mistake, or fraud, against the third respondent is alleged, or pleaded, by the appellant.
7. Alternatively, summary judgment was also sought on the basis that the claim had no prospect of success.
8. As noted above, this matter came before Brown J with surprising expedition on 9 June 2017, and he delivered his judgment on 13 July 2017.

The judgment

9. The Judge rehearsed the matters above and found that no written agreement had been produced, so the agreement relied on must have been oral; noted there was no claim for rectification because of mistake or fraud; and found the claim was statute-barred under the Limitation Act Cap 18 s 5.
As a consequence, he found that the claim had no chance of success, and strt out.

Submissions

11. In reliance on Attorney General v Jui Hui Chan [2017] SBCA 5; SICOA-CAC 36 of 2016 (5 May 2017), the appellant submits that before an application for a determination of preliminary question should be determined, the question should be clearly settled, and on the hearing of it, submissions should not go beyond that preliminary question. He submits that a number of questions of fact need to be determined before the findings of law made by the Judge were available to him. He argues that such matters can only be determined following a full trial.
12. Mr Nimepo was questioned by us about the alternative application for summary judgment. He responded that the High Court (Civil) Rules require a separate application for each relief a party wishes to pursue.

13. That is completely wrong, and we disabuse him of any such notion in the strongest terms. The Rules of Court are designed to assist, not hinder, the expedition of litigation to judgment. Parties are entitled to seek multiple and appropriate relief in one application. We deprecate technical submissions on the Rules that ignore the real crux of a case.

14. There is a total absence of submissions on the merits contained in the appellant’s written submissions although some matters were addressed by Mr Nimepo in answers to questions from the bench.
15. The third respondent points to the fact, already noted, that this was not just an application for the decision on a preliminary point, but also the third respondent’s application for summary judgment on the basis that the claim had no chance of success. It also points to the fact that both in their submissions below, and in this Court, the argument proceeded on the acceptance of the appellant’s own pleadings. The decision proceeded on the same basis.
16. The third respondent further submits that Attorney General v Chan is of no assistance to the appellant because in that case the Judge proceeded to determine a preliminary issue without any formal application. They say the matters advanced by the appellant are without merit.

Discussion

Third respondent

17. The appeal relating to the third respondent can readily be disposed of. No grounds are pleaded, nor is there any evidence, to support the rectification sought. Mr Nimepo urged on us that as there was a building on the land it was a mistake by the third respondent in not making further enquiries.
18. s118 Land and Titles Act where relevant, reads:

(1) No person dealing or proposing to deal for valuable consideration with an owner of a registered interest in land shall be required or in any way concerned-

(a) to enquire or ascn the cire circumstances in or the consideration for which such owner or any previous owner was registered; or

(b) to see to the applicationny consideration or any part thereof; or

(c)& to s any register kept undt under any previous written law relato the registration of documents relating to land.

19. This isis is a complete answer to the appellant’s suggestion that knowledge of the building on the land meant the third respondent was obligated to make further enquiries and failure to do so was mistake for the purposes of s229 Land and Titles Act
    
20. There is the further point that the third respondent was buying the land and buildings. One could ask rhetorically how was the third respondent to know that the appellant owned the building on the land. The obvious problems inherent in any such enquiries are the policy reason for s118.
    

21. s229 reads:

(1) Subject to subsection (2), the High Court may order rectification of the land register by directing that any registration be cancelled or amended where it is so empowered by this Act, or where it is satisfied that any registration has been obtained, made or omitted by fraud or mistake.

(2) The land register shall not be rectified so as to affect the title of an owner who is in possession and acquired the interest for valuable consideration, unless such owner had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default.

22. Clearly, the third respondent was a purchaser for value, who is in possession, had no knowledge of any fraud or mistake and had not contributed in any way to any such fraud or mistake. It also follows that any claim relating to rectification against the first and second respondents must fail as they are no longer the registered proprietors.
    
23. 23. The appeal against the third respondent is dismissed with costs to the third respondent with a certificate for Queen’s Counsel.

First and second respondents

24. In this case the Judge was correct to conclude that the agreement in 2003 must have been an oral agreement, because no written agreement was pleaded, nor was one produced. There are some documents from 2003 that acknowledge an earlier agreement and record receipt of monies paid by the appellant. But this does not assist the appellant, because he does not plead the later documents are any more than receipts for payments made.
25. Even if the pleading was amended to a partly oral and partly written agreement the pleading is still fatally flawed. There is no plea as to the consideration although something appears in a document in evidence that indicates consideration although that is many years later. The land, the subject of this contract is not adequately described as to legal description or area. The only satisfactory map that appears in evidence seems to be authored at the appellant’s request. It does not help. Generally any terms are only vaguely set out and it is impossible to ascertain on the pleadings the actual bargain between the parties.
26. However, one term of such a contract would be inevitable. The sale is said to be for a portion of land that is to be subdivided from an existing lot. Consent to a subdivision is beyond the parties control and relies on the acts of a third party, (e.g. the consent of the Commissioner of Lands s140 Land and Titles Act). Such a term would make the contract conditional. Until the consent of the Commissioner is forthcoming to the subdivision any purported contract would remain conditional. Self-evidently a conditional contract cannot be enforced by way of specific performance. Even on the appellant’s own case he had paid all consideration due by 2007. His counsel agreed that the sub-division of the land was the joint responsibility of the parties to the agreement. Accepting that, even though it is not pleaded, the appellant has not obtained consent to the sub-division after many years and, apparently, he has not taken any timeous steps against the first and second respondents to fulfil this condition.
27. And so whatever the position of the third respondent he is not entitled to specific performance and that claim would inevitably fail. It would also be bound to fail because the land to be subdivided is now properly registered in the name of the third respondent.
28. This leaves only the claim for damages. Clearly the first and second respondents’ received monies from the appellant and the receipts record that it was to do with an agreement for the purchase of some land. We will not rehearse again the issues with the contract but it does appear the appellant may have been victim of some fraud or other wrong doing. It is also possible that the crystallisation of any cause of action for fraud or any other actionable wrongdoing may be still within time.
29. We accept even this would be fraught with difficulty. It would require the appellant to show the first and second respondents never had any intention to transfer the land. We also note the latest possible date such a cause of action could accrue is the date of the registration of the third respondent’s interest on 23 June 2010. The appellant is deemed to have notice of the register and that registration could demonstrate that the first and second respondents’ intention was never to deliver the land.
30. To that limited extent we set aside of the striking out of the appellant’s claim for damages against the first and second respondents. We grant leave to the appellant to file an amended statement of claim against the first and second respondents within 10 working days of the handing down of this judgment. In the event the amended claim is not filed within that time the remaining claim against the first and second respondents is struck out.

31. The pleadings filed in this matter by the appellant are quite simply a mess. Counsel for the appellant must accept full responsibility for this state of affairs and it is essential that he ensures that any amended pleading filed is limited to a claim for damages against the first and second respondents; (given the contract for the sale of the land was never unconditional it appears to us that the only damages that could be claimed would be reimbursement for the moneys actually paid, in cash or in kind); the cause of action and its accrual date must also be specified with clarity and precision. Counsel must also understand he is being given one last chance. That is for his client not him.

32. The submissions, written and oral, meant that this matter followed a different path than before the judge below. We have, for different reasons, agreed with his orders apart from the striking out of the damages claim against the first and second respondents. That part of our decision reflects our concern that the evidence reveals that the appellant may well have been the victim of a serious injustice.

33. We order:

1. The appeal against the striking out of the claim against the third respondent is dismissed.

2. The appeal against the striking out of all claims, excepting the claim for damages, against the first and second respondents is dismissed.

3. The appeal against the striking out of the damages claim against the first and second respondents is allowed. The appellant is ordered to file any amendment statement of claim with 10 working days. If the claim is not filed within that time the appellant’s remaining claim is struck out.

4. Costs of the appeal to the third respondents. There will be a certificate for Queen’s Counsel.

Goldsbrough P

Hansen JA

Young JA