Uraharia v Muda [2016] SBHC 1; HCSI-CC 279 of 2014 (18 January 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 279 of 2014

BETWEEN:

COLLIN URAHARIA
Claimant

AND:

MELVIN MUDA
Defendant

Date of Hearing: 11th December 2015
Date of Ruling: 18th January 2016

Mr. M. Ipo for the Claimant
Mr. C. Hapa for the Applicant

KENIAPISIA, PJ:

RULING

1. This is an application by one named Warren Pado. The application was filed 23/4/2015, together with a supporting sworn statement (ss), also filed the same day. The application was brought under Solomon Islands Courts (Civil Procedure) Rules 2007 ("the Rules"), for joining of a party. The applicable Rules on adding of parties to a proceeding are Rule 3.5 and Rule 3.6.

2. Rule 3.5 - the Court may order a person to become a party to a proceeding, if the person's presence, is necessary to enable the Court to make a decision fairly and effectively. Rule 3.6 – a person affected by a proceeding may apply to the Court for an order to be made a party to the proceeding. The application is therefore in order, in terms of the relevant Rules cited above.

3. I consider first the requirement of Rule 3.6. There is evidence to show that the applicant is a person affected by this proceeding. Firstly that he is the son of the defendant and one named Fredrick Pado. Defendant and Fredrick Pado were his parents who have since been separated in 2008. The property in this proceeding ("disputed property") is a family home of the applicant's parents at some point in time in their marriage. The applicant says the disputed property was originally owned by his grandfather, one named Silas Muda[1]. The disputed property was subsequently transferred to his parents. Then the said property was registered in his father's name, (Fredrick Pado), so that his father who was in paid employment could obtain a loan to carry out repairs on the house.

4. Secondly, the applicant had demonstrated that he had sufficient/equitable interest in the disputed property. In Exhibit WP1-his parents, upon separation in 2008, had agreed on certain consent orders which had laid the platform for an intended subsequent transfer of the disputed property to the applicant. Under the said consent order, the claimant and the applicant had common interest in the disputed property. The common interest is not entirely clear at this stage, but we can infer from materials now before the Court, that the applicant's parents were repaying a loan to the claimant. And that the disputed property's transfer to the applicant was tied to the successful and complete repayment of loans to the claimant. This is their brief common interest known at this stage.

5. From what I said in the preceding paragraphs above, which comes from the ss filed by both the applicant[2] and the claimant[3] it is clear that the applicant is directly affected by this proceeding. Counsel Hapa for the applicant submitted that the applicant also resides on the disputed property together with his mother, the defendant.

6. I next consider, whether the applicant's presence as a party is necessary to enable the Court make a "decision fairly and effectively" in this proceeding.

7. The applicant is saying that once his parents loans with the claimant were paid off, the disputed property should have passed to him. On the other hand, the claimant is denying this. Claimant is saying under the loan agreement with the applicant's father in 2007, the disputed property had already transferred to his name[4]. To complete the transaction; he is seeking eviction orders against the defendant and her relatives to finally take "actual possession" of the disputed property. Going forward, this will be the gist of the dispute over the disputed property, whether made in this proceeding or instigated in a new proceeding. Old or new proceeding, we will still come back to the same disputed property, in so far as the claimant and the applicant's common interest can be traced to the disputed property. It is therefore clear at this stage, that to have a fair and effective proceeding, as far as the said common interests in the disputed property is concerned; the applicant must come into this proceeding.

8. Counsel Mr. Ipo submitted that, should the applicant be made a party, it will complicate things further. Therefore, the applicant should file a separate claim. Even if this were so, a separate claim is likely to be amalgamated with this claim, to the extent that both claims will have bearing on the same disputed property.

9. Practically, fairness and effectiveness in dealing with disputes over the disputed property can only be achieved, if all claims relating to the disputed property are dealt with under this proceeding. To avoid duplication of resources, that can possibly happen by joining the applicant as a party. The applicant may then make "counter claim" if he deem proper under this same proceeding. That would be a fair and effective manner of adjudicating disputes that relates to the disputed property, rather than the applicant start a new claim and then amalgamate later with this proceeding. That will be waste of court resources, expenses for parties and mere duplication of resources – not the effective manner to adjudicate claims relating to the disputed property.

10. Sustaining all that I said above is my respectful view, that the applicant has satisfied me as to the requirements of Rule 3.5 and Rule 3.6. I order accordingly that Mr. Warren Pado, be made a defendant in this proceeding. Any consequential amendment to the pleadings will have to be effected accordingly and the normal time frames are allowed to run. Leave is also granted to accommodate any consequential amendment, including counter claim and cross claims (if any).

11. I next consider, but not making a ruling on the pending application for default judgment. Even if the claimant proceeds and obtain default judgment, he will still have to face up with the applicant either in a new case or under the present case. For efficient and quick resolution of disputes relating to the disputed property herein, the claimant has to make a decision on how he proceeds with his pending application for default judgment.

12. The orders of the Court are:

(1). Leave is granted for the applicant to be joined as a party to this proceeding (2nd defendant).

(2). Leave is also granted to accommodate any consequential amendment to pleadings including counter claim (if any).

(3). Costs in the cause.

THE COURT

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JOHN A. KENIAPISIA
PUISNE JUDGE

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^[1] See sworn statement (ss) by Warren filed 23/4/15.
^[2] Ss by Warren Pado filed 23/4/15.
^[3] Ss filed by Collin Uraharia filed 5/5/15.
^[4] See ss by Uraharia filed 5/05/15; at paragraph 6.