Lever Solomons Ltd v Attorney General [2010] SBHC 71; HCSI-CC 150 of 2008 (20 July 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 150 of 2008

BETWEEN:

LEVER SOLOMONS LIMITED
(Claimant)

AND:

ATTORNEY GENERAL
(1st Defendant)
(Representing the Commissioner of Lands)
(And the Registrar of Titles)

AND:

TIGI SIKELE
(2nd Defendant)

Date of Hearing: 16 June 2010
Date of Judgment: 20 July 2010

Radclyffe A for the Claimant
Firigeni R for the 1st Defendant
No Appearance of the 2nd Defendant

JUDGMENT

Goldsbrough J:

1. Through a claim filed 29 May 2008 the claimant company seeks rectification of the Fixed Term Estate Register, damages for trespass, ancillary relief and costs, in respect of Parcel Number 192-004-513.
   
2. The claimants appeared at trial through their counsel, the first defendant similarly appeared and the second defendant made no appearance. Whilst at the start of the proceedings the second defendant had counsel, at the hearing at which this trial date was fixed he appeared in person, indicating that he may choose a different counsel. In the event there was no appearance at the trial of the second defendant either in person or through counsel. Given that he was present when the trial date was fixed and has given no reason why he is unable to attend the trial as arranged, the Court is prepared to proceed in his absence. After all, he cannot be compelled to attend, he may only be invited.
   
3. At the same time the Court declined a request on the part of counsel for the First Defendant to postpone the hearing as counsel had been placed in some difficulty because his client has not been forthcoming with instructions. Given that the trial had been fixed in April for late June it appeared to the Court that adequate time had passed for the client to arrange their affairs in a way that allowed them to give instructions to their counsel, and so the request for further time was declined. By the same token trial time had been allocated and should be put to some use as it is not an infinite commodity. Whilst where necessary cases may be taken out of trial lists, valid reasons have to be made out by those seeking adjournments. Not turning up or not taking the time to provide adequate instructions to counsel are not valid reasons.
   
4. Evidence for the claimants came from sworn statements that had been served on the parties and to which no objection had been made. There being no objection to the sworn material the case for the claimants lies therein. In particular the sworn statements of John Whiteside and Alfred Soaki filed in these proceedings show that the claim is made out in full.
   
5. It is apparent from that material that a mistake, if indeed not a deliberate fraud, was made when the FTE register entry was permitted and made granting title to the second defendant. The material further demonstrates that the second defendant was not a bona fide purchaser for value and therefore is not entitled to rely on any protective provisions of the relevant legislation. The court was told that the officer within the Lands Department who facilitated this transaction is still employed by that Department. Whilst the Commissioner of Lands must determine who is fit to be employed in his or her Department, it is to be hoped that officers prepared to facilitate corrupt dealings are not given first choice of posts.
   
6. In passing the Court notes that counsel from the Attorney General's Chambers was put in the embarrassing position of not having any instructions from the client department. Given that the Chambers have a duty to represent these entities, it is difficult for the Chambers to withdraw following the client Department's failure to provide instructions. Counsel is in those circumstances only able to present that which he has and cannot and is not held responsible by the Court thereafter for any failure.
   
7. It is not an ideal position that the court finds itself in when a defendant makes the choice not to present any case. Here the defendant had the benefit of counsel at an earlier stage in the proceedings, and thereafter appears to have lost interest. Nevertheless the court has considered all material that has been filed and served for the claimant to ensure that its case has been proved to the requisite standard.
   

In the event, the Court is satisfied on the material presented that the claim as brought is proved on the balance of probabilities. Whilst the second defendant is in actual possession of the land, he is not a bona fide purchaser and made improvements on the land after notice that his title was not in order. The Court therefore orders rectification of the register to reflect the ownership of FTE 192-004-513 to be in the name of the claimant company and that buildings erected on the land belong to the same claimant. Given this the claimants do not pursue their claim for damages. Costs of these proceedings are ordered to be paid by the First and Second Defendants in equal shares.

Dated this 20th day of July 2010

GOLDSBROUGH