Waitara v Rarai [2015] SBHC 121; HCSI-CC 215 of 2014 (31 July 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 215 of 2014

BETWEEN:

ANGELO WAITARA
Claimant

AND:

ADRIAN RARAI (Aka Baddley Rarai)
Defendant

Date of Hearing: 31st July 2015
Date of Ruling: 31st July 2015

L. Ramo for the Claimant
L. Kwana the Defendant

RULING

Maina J:

The Claimant applies under Rules 8.16 (c) and 12.11 of the Civil Procedure Rules of 2007 for the Court to determine preliminary issue of law and relates to a claim under Category A.

The claim is on FTE 191-034-169 which was allegedly surrendered by the Claimant and offered again to the Defendant by the Commissioner of Lands. The Claimant claim such was made by forgery on part of the Defendant.

The preliminary issue is on two questions:

1. Whether or not the process of offer, acceptance and execution of a grant instrument creates a equitable interest.
   
2. Whether or not an equitable interest in land confers any right of lease on the owner of such interest.
   

The application was objected by the counsel for the Defendant on the reason that these questions are the main issues in this case and should properly be dealt with at the trial properly. And this application comes up when it still at the stage of exchange of documents by the parties or towards the stage of Pre-trial Conference.

The Court may hear such application under Rules 12.11 and 12.12 of the Civil Procedure Rules provided the parties agreed on the facts but there remains a question of law in dispute. That would mean the Court may hear argument from the parties about the question of law but in this matter what is clear is that the facts have not yet been agreed by the parties.

If it is then so or the parties still at the stage of exchange of documents making of such application is not yet right but or otherwise later.

With the case Alai v Kakai (SBHC I: HCS – CC 200 of 2008 referred by the counsel for the Defendant it is similar to the situation but the application was made under Rule 23.3 of the Civil Procedures Rules and relates to the non compliance of the order of the Court.

It is not yet right or can be heard later when the parties agreed on the facts otherwise such be for the trial proper.

The Application is refused.

THE COURT

.................................................................
Justice Leonard R Maina
Puisne Judge