Ganifiri v Commissioner of Lands [2003] SBHC 124; HC-CC 188 of 2002 (24 August 2003)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 188 of 2002

MARILYNE GANIFIRI & DAVID GANIFIRI

V.

THE COMMISSIONER OF LANDS AND THE REGISTRAR OF TITLES AND THE PROVINCIAL SECRETARY MALAITA

High Court of Solomon Islands
(Palmer J.)

Date of Hearing: 30^th July 2003
Date of Judgement: 25^th August 2003

I. Kako (Jnr) for the Plaintiffs
J. Deve for the Commissioner of Lands
No attendance by the Provincial Secretary Malaita

PALMER J.: The Plaintiffs seek leave to enter judgment against the first Defendant for failing to file Defence and against the third Defendant for failing to file Memorandum of Appearance and Defence. Leave is required in proceedings against the Crown for judgment in default to be entered under Order 29 rule 14 of the High Court (Civil Procedure) Rules 1964 (“the Rules”). The Plaintiffs also seek consequential orders for judgment to be entered under the same Notice of Motion where leave is granted. The Plaintiffs rely on rule 8 of Order 29. I quote:

“In all other actions than those in the preceding Rules of this Order mentioned, and those to which Rule 14 of this Order applies, if the defendant makes default in delivering defence, the plaintiff may set down the action on motion for judgment, and such judgment shall be given as upon the statement of claim the Court shall consider the plaintiff to be entitled.”

An application for judgment under rule 8 requires that judgment must be given on the pleadings as set out in the circumstances of this case (see Smith v. Buchan^[1], and Young v. Thomas^[2]).

The Writ of Summons and Statement of Claim in this action were filed on 29^th July 2002. They were served on the first Defendant on same date. The third Defendant was served on 28^th August 2002. On 26^th March 2003 the Plaintiffs filed an Amended Writ and Statement of Claim. It was served on the first Defendants on 1^st April 2003 and on the third Defendants on 11^th April 2003. As at date of hearing of this case, no appearance or defence has been filed in respect of the third Defendant and no defence in respect of the first Defendant.

Should leave be granted as set out in the pleadings? The claim of the Plaintiffs is based on the acquisition of the registered title to the fixed-term estate in parcel number 171-001-343 on 14^th July 1998, being date of registration, to 30^th January 2002, being date of rectification of the register over that fixed-term estate by order of this Court in Malaita Development Authority v. Marylyn and David Ganifiri and Others^[3]. In that period from 14^th July 1998 to 30^th January 2002 (a period of 3 years 6 months) the Plaintiffs claim that they had expended money, time and effort and which they say entitles them to be compensated by the first and third Defendants. Under paragraph 10 of their Amended Statement of Claim, they set out the total costs of improvements that they had done on the land including buildings amounting to $230,000-00. These have been particularized under three headings:

(a) refurbishment of existing building

(b) extension to the existing building, and

(c) detailed leaf hut with concrete floor slabs.

In paragraph 11 they set out further costs including labour, administration, transportation costs, freight charges, rations and other related costs totalling $179,000-00. Under paragraph 12 they make claims for “futuristic” losses to business and reputation totalling some $359,200.00.

The costs claimed under paragraphs 11 and 12 with respect are too ambiguous, remote and far fetched and have no basis in law.

The claims on improvements to the land have merit but judgment cannot be granted on the amount sought. The amount of $230,000-00 sought is not a liquidated sum. The proper order to be given in the circumstances is for judgement to be entered for the action filed but damages to be assessed.

Further, it is important to appreciate that the mistake cannot be placed at the feet of the first and third Defendants alone. The Plaintiffs are equally responsible. They were aware of the mistake but persisted with the application for registration and works on the land. Any such works therefore were done at the risk that the title may turn out to be defective, as has happened in this case. The Plaintiffs therefore cannot be completely absolved of any blame. In the judgment of this court in Malaita Development Authority v. Marilyn Ganifiri and David Ganifiri and Others (ibid) at page 4, I said:

“I am also satisfied the first Defendants were aware of the mistake as early as 14^th August 1997 (see page 40 of the Agreed Bundle of Documents) and that accordingly subsection 229(2) would not apply.”

In my respectful view the mistake and subsequently any expenses or costs arising from that mistake must be borne equally by the three parties; that is the first Defendant, the third Defendant and the Plaintiffs.

Decision

Leave to enter judgment and judgment is granted but only in respect of the claims for improvements with damages to be assessed in chambers.

Having so ruled, I make the following directions for further progress of this case. (i) Any affidavits in support of the claim for damages should be filed within 14 days; (ii) replies 14 days thereafter, and (iii) the matter to be listed for assessment in chambers anytime thereafter.

Orders of the Court:

1. Grant leave to enter judgment against the first and third Defendants in default of defence.
   
2. Consequently grant judgment in respect of the claims for improvements on the land as against the first and third Defendants but with liability to be apportioned to each party on a one-third basis. (The other third must be borne by the Plaintiffs themselves).
   
3. Damages to be assessed in chambers.
   
4. Costs of the Plaintiffs to be borne by the first and third Defendants.
   

Directions in respect of the issue of assessment for damages:

1. Any affidavits in support of the claims for damages to be filed within 14 days.
   
2. Any replies to be filed 14 days thereafter.
   
3. The matter to be listed for hearing anytime thereafter.
   

The Court.

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^[1] 58 L.T. 710
^[2] [1892] 2 Ch. 135, C.A.
^[3] Civil Case 217 of 2000, 30^th January 2002 per Palmer J.