Bartlett v Hai Way International Ltd [2011] SBHC 168; HCSI-CC 244 of 2011 (15 December 2011)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 244 of 2011

BETWEEN:

ALEX BARTLET
Claimant

AND:

HAI WAY INTERNATIONAL LIMITED
1st Defendant

AND:

LEE KWOK KUEN AND COMPANY LIMITED
2nd Defendant

AND:

ATTORNEY GENERAL
(Representing Commissioner of Lands and Registrar of Titles)
3rd Defendant

Date of Hearing : 30 November 2011
Date of Ruling : 15 December 2011

J. A. Keniapisia for Claimant
Dr. P. Tagini for Second Defendant

RULING

1. Claimant filed his claim on 7 July 2011. He seeks: 1. A declaration that the transfer of title in Parcel Number 191-007-192 to the Second Defendant was void and registration was obtained through fraud and or mistake; 2. Owing to the above, the Claimant is entitled to rectification of the land register, by removing the name of Second Defendant as registered owner of Parcel Number 191-077-192 ("the property") and replace therewith the name of the Claimant; 3. Other orders deem fit and necessary by the court; and costs in indemnity basis.
   
2. The Second Defendant filed this application on 27 July 2011. The Second Defendant alleges that the claim is an abuse of the court process; (b) the claim is frivolous and vexatious and does not disclose any reasonable cause of action; (c) the case in this action is res judicata estoppel on the grounds that the parties are the same, the property in dispute is the same property and the issues for determination are the same as those already determined by his Lordship Justice Chetwynd in Civil Case No. 258 of 2007 and Civil Appeal Case No. 18 of 2010. The claim is res judicata issue estoppel which is an absolute bar to its reiteration. In the result these civil action in Civil Case No. 244 ought to be struck out for abuse of the court process.
   
3. The case for the Claimant is that the issues pleaded in the previous case Civil Case No. 258 of 2007 are in contract law, and Mr. Bartlett was seeking rectification relief on the grounds of enforcing a valid contract (MOU), on the ground of specific performance. In the present case though the same subject matter, is pleaded in land law and seeking reliefs of rectification on the grounds of fraud and or mistake. The issues are therefore quite different. Further, there a special circumstance which qualifies this case to be an exception to the general rule of res judicata as laid down in Hudson's case. That special circumstance is the new evidence in the present case which was not available in the previous case. The new evidence is contained in the sworn statement of Presley Watts[1], the Solicitor who vet the MOU – which is the common subject in this case and previous case. Also the parties are now different with the inclusion of Attorney General. This again makes it an exception to the general rule. On this ground the Court of Appeal says: "to make out estoppels....,it is necessary to show that earlier judgment relied on was a final judgment, and that in between the former and present litigation, there is identify of parties and subject matter or cause of action"[2]. In view of the foregoing the Claimant submits that in the circumstances of this case the matter should proceed to full trial and that is not an abuse of the Court process on the ground of res judicata.
   
4. There is fresh evidence from Preslie Watts that he was engaged to negotiate and settle the purported illegal registration of the property on the Claimant's name by one Kuo Fung Chi of the First Defendant. At that time he did not know Kou Fung Chi had also entered into a contract with the Second Defendant for the purchase of property which was registered in Alex Bartlett's name at that time. Preslie Watts' specific instructions was to negotiate the surrender of property, the rectification of the register and the transfer of the property to Hai Way International Ltd. Mr Preslie Watts had a meeting with Alex Bartlett and advised him of Kuo Fung Chi's proposal to allocate a portion of property (i.e 1 hectare) to him in exchange for 1 hectare of land own by Alex Bartlett's property at Tasahe to build a company residential building for Hai Way International Ltd. Kuo Fung Chi was happy and advised Preslie Watts to prepare a MOU to be signed with Alex Bartlett concerning the settlement of the property. On 28 February 2007, Kung Fung Chi and Alex Bartlett signed the MOU.
   
5. Hai Way International Ltd and Alex Bartlett signed this MOU. Paragraph 4 of the MOU states: Complainant, (Hai Way International Limited) agrees in principle to partition the land subsequent to rectification and allot to Alex Bartlett a portion thereof.
   
6. Paragraph 6 of the MOU relevantly states: Further in consideration, the respondent (Alex Bartlett) shall also allot to the complainant (Hai Way International Limited a block of land within his estate at Tasahe.
   
7. It is accepted that the issues pleaded in the previous case are in contract law, and Alex Bartlett was seeking rectification as a relief on the grounds of enforcing a valid contract (MOU), on the ground of specific performance.
   
8. But in this case, though on the same subject matter, Alex Bartlett is pleading issues in law and seeking reliefs of rectification on the grounds fraud and or mistake.
   
9. The Respondent has a reasonable cause of action though it may seem weak that is no ground to summarily strike out the claim at this stage. The portion of land which the Respondent sought here is a 1 hector of the Second Defendant's land.
   
10. In the circumstances, the application is refused and dismissed.
    

Order:

1. Application refused and is dismissed.
2. Applicant to pay the Respondent's costs of this application.

Order accordingly.

THE COURT

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^[1] See Sworn Statement by Watts filed 15/08/2011
^[2] See Majoria –v- Jino Court of Appeal Civil Case No 36/2006.