Saru v Maelimani [2013] SBHC 165; HCSI-CC 369 of 2013 (6 September 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Civil Case No. 369 of 2011.

BETWEEN:

PAUL SARU
(Representing the registered Trustees of Parcel Numbers 191-005-5, 152-005-6; 152-005-7 and beneficial owners of Una'abu Land Plan 2130).
Claimant

AND:

BARNABAS MAELIMANI
(Representing himself, family members & relatives residing on Una'abu Land)
First Defendant

AND:

MARTIN AU
(Representing himself, family members & relatives residing on Una'abu Land)
Second Defendant

AND:

JACK SIPOLO MAE
(Representing himself, family members & relatives residing on Una'abu Land).
Third Defendant

Date of Hearing: 4th August, 2013.
Date of Ruling: 6th September, 2013.

Miss Ramo for the Claimant.
Mr Rano for Defendants (1) and (3).
Mr Kwana for Defendant (2).

RULING ON APPLICATION FOR REINSTATEMENT.

Faukona J: This application premises on Rule 7.3 for reinstatement of the Claimant's application for summary judgment, struck out by this Court on 15th April 2013, for non-appearance by the Claimant or his Solicitor. Upon realising Rule 7.3 does not apply to the circumstances of this application, the Counsel for the Claimant invoked Rule 1.4, which is another rule of general application.

2. Perhaps the proper rules are Rule 9.13 setting aside an order dismissing the proceeding for want of prosecution or Rule 17.55 setting aside on order made in the absence of a party. However, I am conscious of Rule 1.16 that non-compliance of the Rules is an irregularity, which does not make the proceeding, a nullity.

3. At the time of setting aside order was made, an application for summary judgment was on foot. Having aggrieved of that order the Claimant now comes to Court and seek an order setting aside orders made on 15th April striking out the application for summary judgment and pleas that that application be reinstated.

4. The Counsel for the Claimant advances two grounds in support of her application for reinstatement. One that the Solicitor who had carriage of the matter, Mr Iroga then of DNS and Partners Law firm was away in Vanuatu. That the Solicitor failed or neglected to instruct any of the Solicitors in the firm. Secondly that they have not received any notice for the hearing.

Non-attendance by Claimant's Counsel:

5. In Court Counsels Mr Rano and Mr Kwana affirm that they have received notices of hearing and attended hearing on 15th April, 2013. One could guess that Counsel Iroga's mind set could have been preoccupied with going away to Vanuatu. Even if he had received notice of hearing, he could have not bothered or informed other Counsels in the DNS law firm.

6. The problem here is that Mr Iroga probably not called upon to file any sworn statement to explain his situation. His evidence would probably provide a hint as to what exactly happened. I would only ask behind a smoke screen, did Counsel Iroga receive the notice before he actually departed to Vanuatu? Or was the notice sent after he had left. If so then someone responsible for receiving notices could have alerted the principle partner of the firm. In any event it would be of no use asking since no sworn statement was filed, and since the Counsel now in Court blatantly submits they did not receive any notice and rely on the case of Fera V Maomatekwa,[1] in which this Court set aside striking out order and reinstated the claim on the basis that Claimant's Solicitors were not aware of the notice of hearing.

7. Quite often I echo the same message again and again, that I would not accept Counsel's negligent conduct and failed their duties owe to their clients. Their clients deserve to be served diligently. There could have been deposit fees paid or progressive costs paid. And that should remind Counsels, that they have collected public money and their failure to provide services speaks negatively on them and the service they provide.

8. In this case, I would not allow Counsel's negligent conduct to have a legal consequent upon the Claimant's case.

Whether Claimant's Case has merit:

9. There is submission that the Claimant's application for summary judgment has merit. Based on materials disclosed the Counsel for Claimant thought that the Defendants have no arguable case. Counsel rely on the case of Golden Springs Limited and North New Georgia Timber Corporation V Warren Paia,[2] where the Court of Appeal allowed the appeal against granting of summary judgment, on the ground that the Appellants own the land in issue by authority of people with superior title to that of Respondent.

10. Mr Rano has argued vigorously on this issue of merit. A number of case authorities is referred to, and denies that the Claimant is entitled to orders for summary judgment. Mr Rano's submission is basically focussed on the application for summary judgment. I am not entertaining the application now but I will superficially pick on certain principle which may encompass whether the Claimant has an arguable case, and whether he has any prospect of succeeding.

11. The first principle is in the case of Buga V Ganifiri,[3] which Chief Justice Daly outlined that one of the grounds in which land ownership is acquired on Malaita island is purchase from true customary land owners. In the case of Sipolo V Saru & Other,[4] the Court recognized Maelimani as true landowner of Una'abu land and that anyone who buys from Maelimani has a better chance.

12. In the case of Maelimani V Saru,[5] the High Court affirmed the decision by the Malaita Customary land Appeal Court that the land sold by Maefou to Saru will remain as it was, with Southern boundary from point A46 straight across in easterly direction to Founaki river, marked by a blue and red line with blue across circled in red.

13. It appears that in Maelimani's Case of 1979 followed the decision in the case of Maefou V Maelimani,[6] in 1973 which the Court stated on page 3 paragraph 2, that the sale was effected and I accept this without hesitation, in good faith under the belief by both parties that the land was a part of Atori land and that Maefou and his line were the proper control of it. No steps were taken until this case to bring that matter into Court. Maelimani now stopped from objecting that sale. The sale will stand as good.... Anyone else who wishes to buy more of una'abu land must buy from Maelimani and his line.

Second Defendant's case:

14. The case of the Second Defendant is that his father bought a plot of land within Una'abu customary land from Maelimani in 1959. That sales transaction was done before Maefou who was not a landowner sold a portion to the Claimants in 1961 or 1963. Nothing was done by Maelimani until 1973. The question is was the land sold to the Second Defendant within or outside of the land sold to the Claimants? If it was within then it is an issue; which sales transaction takes precedent over the other? It would certainly appear that the second Defendant has an arguable case. And that has yet to be determined by the Local Court since the case was referred to it by the CLAC. Until now, the Local Court still sits on that case without hearing and determination.

15. Quite apart from that, Mr Rano's submission does not have coverage of the Third Defendant's case. However, I think it is prudent to high light a point to assist in general approach. On 20th November 1992, there was a Local Court decision, which was in favour of the Third Defendant. The decision was appealed by Saru but was dismissed by the High Court for being appealed out of time. The importance of that decision is that it outlined the boundaries of the land sold to the Third Defendant, see civil case No. 11 of 1991. The boundary was outlined on page 2 of that decision.

16. The issue is whether the sale transaction was done before or after the decision in Maelimani V Maefou? If it was done before that, then the Third Defendant has an arguable case. In this case the sworn statement of Jack O'oi filed on 30th May, stated the sale was done in 1956, well before the case of Maefou V Maelimani in 1973.

17. There can be no doubt that map/plan 2130 had been accepted as Una'abu land which was found in 1992 in custom belong to Maelimani and his line. The High Court in its own words said that all that land from A46 and ran horizontal to Founaki river and known as south boundary have been shallowed up by Malaita Local Court and Customary Land Appeal Court in 1978. And that land was the land sold by Maefou to Saru in 1961 or 1963. See paragraph 4 of page 6 of High Court Case CC No. 1 of 1979.

18. What does the High Court mean? Whatever the meaning may be, it boils down to the very fact the three sales transaction could have a contradictory effect. If so then, it is an arguable case and ought to be heard and be sorted out. Further, it appears that the lands sold to Second and Third Defendants were within the land sold to Saru.

19. In any event the two portions sold by Maelimani were well defined in terms of boundaries. The portion sold to Martin Fatai was defined in paragraph 4, page 1 in the decree. It was a local Court case No. 9 of 1993 between Martin F V Saru. That case is still pending Local Court hearing. The other portion sold to the Second Defendant had boundaries well set out in paragraph (15) above.

20. Also on note was a criminal case filed by the Claimants against Ledia Arikafo for trespassing and residing on part of plan 2130. In his defence Ledia stated he bought the piece of land from Maelimani. The Magistrate specifically spotted the actual location of Mr Ledia's house that is east of R18 and below the letter "L". That location can be found in a map attached to sworn settlement of Martin Funaga filed on 29th June, 2012. Clearly, it would fall within the land shown in the map as kwakwaru land, or further describe as land under dispute.

21. On the whole, I could able to perceive that there are merits on both sides of cases. Meaning there are arguable issues, which must be heard. In the light of the material evidence before this Court, I therefore grant the application.

Orders:

1. That orders of Court of 15th April 2013, striking out the Claimant's application for summary judgment be set aside.

2. Claimant's application for summary judgment be reinstated.

3. Cost in the Cause.

The Court.

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^[1] (2011) SBHC 63; HCSI-CC91 of 2009 (16 August 2011).
^[2] (1999) SBCA 11; CA – CAC of 1998 (24 November 1999).
^[3] (1982) SILR 119.
^[4] (Civil Case No. 11 of 1991.
^[5] (Civil Case No. 1 of 1979.
^[6] Civil Case No. 2 of 1975.