Khadem v Wickham [2015] SBHC 49; HCSI-CC 238 of 2014 (3 June 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 238 of 2014

BETWEEN:

KAYHAN KHADEM and ARIANA KHADEM
Claimant

AND:

DOROTHY WICKHAM
First Defendant

AND:

JOHN SAKI
Second Defendant

Date of Hearing: 6th May 2015
Date of Ruling: 3rd June 2015.

Mr M. Pitakaka for Claimant
Mr W. Rano for Second Defendant
No one for First Defendant (Never participated since day one).

RULING ON APPLICATION FOR SUMMARY JUDGMENT AND

APPLICATION TO STRIKE OUT.

Faukona PJ: A claim in category A was filed on 29th July 2014. The claim seeks certain reliefs in terms of orders for $2,081,426.46 with interest of 10%, being for debt owed under a contract of sale in relation to three lands owned by the Claimant. The lands are PN 191-004-0046, PN 191-004-0028, and PN 191-004-0026. Alternative to order 1 is an order for damages for breach of contract of sale, in the sum of $3,030,100.00 with interest of 10%.

2. An order for mesne profit against the first Defendant for trespass on the properties between October 2012 and April 2013, to be assessed.

3. An order for mesne profit against the first Defendant for trespass on the properties between August 2012 and December 2013 and May 2014, to be assessed.

4. Consequent to order 4 an order permanently restraining both Defendants by themselves, their families, servants or agent from trespassing on the properties.

5. The second Defendant acknowledged receipt of the Claim which was served on him on the 1st August 2014, and disputes the claim. A request for further and better particulars was filed on 2nd September 2014 and answers in reply were filed on 17th September 2014.

6. However, there was no defence filed since then. Instead, this application was filed on 7th October 2014 pursuant to Rule 9.61, that judgment be entered for the second Defendant or alternatively an order striking out the claim under Rule 9.75 for disclosing no reasonable cause of action or it is frivolous and vexatious.

Ownership of PN 191-004-0046, PN 191-004-0028, PN 191-004-0026.

Summary Judgment:

7. The argument advance by Mr Rano is that the Claimant is seeking relief under a contract of sale over properties in which they do not clearly own at law and or by fact. A search had been carried out in the land registry resulted in those lands were own by different people. See sworn statement of G. Leamana filed on 7th October 2014. There was no sworn statement in response to rebut the findings of Mr. Leamana.

8. Whilst there is no sworn statement filed in that regard, Mr Pitakaka in submissions admits the parcel numbers are wrongly quoted. It should have been 192- and not 191 in all the first three figures in the parcel numbers. He further suggests that this can be easily cured by simple amendment. However, Mr Rano insisted the same parcel numbers quoted in the relief sought are repeated in the statement of case and again repeated in paragraph 1 in the Claimant's answer filed on the 17th September 2014 to the second Defendant's request for further and better particulars. Repeated thrice is a full affirmation of the truth with sufficient chance given for an alteration. Where a chance cannot be utilised, therefore cannot amount to typing error but a fundamental error of which amendment cannot cure the fundamental defect.

9. I noted there was no sworn statement filed to support the claim. I have to rely on pleadings in the claim with no asserted facts in support. In any event each party is bound by its own pleadings - see South Pacific oil V GRP & Associates Ltd[1]. With the defects undenied, can the Court summarily enter judgment against the Claimants? This case is still in the pleading stage. Sworn statement in support of the Claim has yet to be filed; a defence is still to be filed as well. Granting of a summary judgment should be the last resort if an amendment is not the most appropriate option to cure the error or defect.

10. Furthermore, R 9.58 provides that a defendant may apply to the Court for summary judgment to summarily dismiss the claim. He can only do so after he has filed a defence and believes that there is no real prospect of any part of the claim succeeding. He must have some kind of proper and legitimate human assessment in support of his belief. That rule is couched in the mandatory senses. Should he fails; he is not entitled to file an application for summary judgment? In this case, there was no defence filed at all. That failure therefore waives his rights to apply. His believe therefore tantamount to fundamental error which I could able to conclude can be cured by simple amendment. It would be clearer when sworn statement in support of the claim is filed and a copy of the written agreement disclosed. At the same time the second Defendant be given time to file a defence. To grant summary judgment now is premature at this stage. The second Defendant has not complied with Rule 9.58; therefore the best option is to refuse to grant orders to enter summary judgment against the Claimant. The case has yet to complete pleadings, and direction orders are necessary to move the case forward.

Application to strike out:

11. Application to strike out is based on usual ground as being frivolous and vexatious and there is no reasonable cause of action disclosed. Mr Rano submits that the pleadings concern properties not owned by the Claimants. He further states that properties pleaded clearly shows that the pleading is defect in both form and substance. In form, the pleading is badly drafted. In substance there is no clear cause of action.

12. In paragraph 5 of the statement of case contain some material terms of the contract. Paragraph 10 points to clause 4 of the contract for sale. It would appear as a necessity that the contract for sale agreement be upheaved and brought to light and be disclosed by a way of sworn statement. That will assist Court to consider causes of action stated in Paragraph 23 of the Claimants submissions, including breach of contract, trespass, breach of licence etc. Meantime those causes of action have been pleaded, a sworn statement in support would verify causes of actions fit to be determined at trial.

13. From the claim alone there are some causes of action identified and disclosed. There is pleading in relation to part performance which may render implication as to liability. This is not a case where the claim is baseless or so bad and does not disclose a cause of action. It should be done only where the statement of claim and asserted facts do not raise an arguable case fit to be decided at trial. And striking out on the ground of frivolous and vexatious is to be sparingly used only in exceptional cases. Indeed the statement of case discloses some causes of action, and some questions fit to be decided at the trial. I am satisfied there are causes of action disclosed which in my assessment has some merit to be heard at trial. The principles outline in Tikani V Motui's[2] are observed and applied in this case. Therefore application to strike out is dismissed.

Order:

1. Application for summary judgment dismissed.

2. Application to strike out dismissed.

3. Costs is paid to the Claimants by the Defendants.

The Court.

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^[1] (2012) SBHC 20; HCSI-CC 223 of 2011 (27 February 2012).
^[2] (2002) SBHC 10, HC-CC 029 of 2001 (8 March 2002)