Pacific Properties Development Ltd v Rapeka [2016] SBHC 142; HCSI-CC 1 of 2014 (1 September 2016)

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

Civil Case No. 1 of 2014

BETWEEN: PACIFIC PROPERTIES DEVELOPMENT LIMITED - Claimants

AND: FRANCIS RAPEKA - Defendants



Date of Judgment: 1 September 2016

Mr W. Rano for Claimant
Mr. S. Solosaia for Defendant

RULING

Maina PJ:

Introduction

The Claimant with an amended application filed under rule 9.57 of the Civil Procedure Rule 2007 is seeking judgment to be summarily entered against the Defendant. The Claimant said despite the defence, they believe the Defendant’s defence is one that is not capable of succeeding. And in spite of the request for better particulars the Defendant was unable to response or to provide evidences to support his defence.

Fact

The Claimant filed a claim for an order for the Defendant to immediately give vacant possession of Fixed Term Estate in Parcel No. 192-004-456 and 191-004-250, damages for trespass to be assessed and permanent injunction restraining the Defendant, his agents, servants, relatives and family from further trespassing.

The Claimant’s believe the Defendant’s defence is not capable of succeeding as verified or disclosed in the sworn statement of Kiko Beto, Service Processor, Rano and Company that upon searched at the Land Registry relating to Fixed Term Estate in Parcel No. 192-004-456 and 191-004-250 he found at the record that they are owned by the Claimant. At Exhibit “KB”, a certified copy of titles reveals that the transfer of fixed term estate to the Claimant was Levers Plantation Limited.

Defences

A defence was filed by the Defendant which he acknowledged that Fixed Term Estate in Parcel No. 192-004-456 and 191-004-250 are now registered in the name of the Claimant, but said that the whole land which these two parcels of land now situated was previously returned to the original landowners by Levers Pacific Plantation Limited upon the expiration of the lease and held in trust by Chief Saki and Urombo. He said the subsequent sub-division by the Claimant and registration of the said land in the name of the same is void ab inito or void from the beginning.

Upon the defence by the Defendant, the Claimants requested further and better particulars on the matters raised by the Defendant in his defence as when the land was returned to the original landowners by Levers Pacific Plantation Limited, certificate of titles and related matters. But to date, there was no response on the request.

Summary judgment

On the Summary judgment rule 9.57 of the Rules provides that:

“9.57 The claimant may apply to the court for summary judgment where the defendant has filed a response or a defence but the claimant believes that the defendant does not have any real prospect of defending the claimant’s claim.

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9.59 A claimant’s application for summary judgment must have with it a sworn statement that:

(a) verifies the facts stated in the claim; and
(b) states that the claimant believes there is no defence to the claim; and
(c) states the specific orders that are sought by the claimant”

The purpose of the summary judgment under Rule 9.57 is to provide an early judgment in a case in which the Defendant has no hope of success and defence he raises will merely have effect of delaying judgment.

The policy behind the procedure is to prevent delay in cases where there is no defence as said by Lord Halsbury in Jocab v Booth’s Distillery Co. (1901) 85 LT 262, HL. Where an application is made, the task is of the Court to determine whether there ought to be a trial. To defeat the application the Defendant does not have to show a good defence. He only needs to show an arguable defence or some other reason why there ought to be a trial (Civil Litigation, O’Hare & Hill 2^nd Ed, p. 198). As long as there is an issue for investigation, summary judgment will not be granted (Miles v Bulls 1 QB 258).

In this case the Defendant acknowledged that Fixed Term Estate in Parcel No. 192-004-456 and 191-004-250 are now registered in the name of the Claimant. His defence only stated that land was returned to the original landowners by Levers Pacific Plantation Limited. When counsel for the Claimant asked for better particulars and copy filed in Court on 22^nd February 2014 on the details and record of the arrangement and so on, there was no response until today.

The registered titles further disclose and conclude an issue for investigation. By the Honiara Land Registry Record, the grantor of Parcel No. 192-004-456 and 191-004-250 is the Commissioner of Land and grantee is Levers Plantation Limited for a term 75 years from 31^st July 1977. The Levers Plantation Limited transferred to the Claimant (Pacific Properties Development Limited) the Fixed Term Estates in Parcel No. 192-004-456 on 23^rd June 1997 and Parcel No. 191-004-250 on 10^th September 2002.

The parcels of lands were transferred to the Claimant by the Levers Plantation Limited. They are registered land and the title is indefeasible under the Land-Titles Act (Cap. 133).

When such title is registered it can only be defeated by proving fraud or mistake under Section 229 of the Land & Titles Act. There is defence but do not disclose anything better. Even if it is there, is no defence against indefeasibility of title under the Land & Titles Act Patty v Tikani [2001] SBHC 62; HC-CC 197 of 2000 (31 August 2001).

The sworn statements of the Defendant filed on 18^th February 2014 and Oxley Ahukela filed on 19^th March 2014 that the land was bought by Mr. Delbert (Canadian) cannot be a defence as no evidences of their registered titles or to show an arguable defence or some other reason why there ought to be a trial.

For this case there is no defence that discloses a triable issue. And I am satisfied that the Defendant has no arguable defence to the claim and there is no need for a trial of the claim therefore I give summary judgment for the Claimant.

ORDER

1. Summary Judgment is entered for the Claimant against the Defendant.
   
2. The costs of this application are awarded to the Claimant on indemnity basis to be taxed if not agreed.
   
3. No further orders.
   

THE COURT

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Justice Leonard R Maina
Puisne Judge