Attorney General v Bobby [2016] SBHC 150; HCSI-CC 142 of 2015 (13 September 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case No. 142 of 2015

BETWEEN: ATTORNEY-GENERAL - Claimant
(Representing the Permanent Secretary of Ministry of)
Finance and Treasury)

AND: ALICK BOBBY - Defendant

Date of Hearing: 2^nd September 2016.
Date of Ruling: 13^th September 2016.

Mrs. R. Soma for the Claimant.
Mr. H. Fugui for the Defendant.

KENIAPISIA; PJ:

RULING ON APPLICATION FOR SUMMARY JUDGMENT

Introduction

1. Court is dealing with an application for Summary Judgment. Claimant filed the said application in respect of its Category C Claim filed 16/04/2015. The application is supported by two sworn statements made by Nelson Naoapu and Elizabeth Kausimae – both very senior officers of the government.
   
2. In applying for Summary Judgment, claimant is saying that the defendant does not have any real prospect of success in defending the claim. Defendant’s defence was filed 19/05/2015.
   

Defendant’s position or submissions

3. Defendant say in submission, that his client did not dispute the fact that he has no legal right to the property. Defendant however said that claimant does not have legal right to the property either. Defendant argued that, an eviction order or claim or proceeding can only be properly brought, if the owner of the property is applying for the eviction of the alleged trespasser.
4. The owner of the disputed property is Commissioner of Lands (“COL”). For this case to be properly instigated, the COL must become the claimant, the defendant submitted.
   
5. In property law and in particular with registered lands, the owner of the land appears in the register. When the owner wants to instigate a proceeding, the owner becomes the claimant. In an eviction proceeding, it denotes that the owner of the property (registered land) is complaining about some wrong against the tenant or alleged trespasser on his/her land.
   
6. Defendant argued that before the application for Summary Judgment is entertained, the COL must become the claimant – being the owner of the land in question. For now the claimant and the defendant are both not owners, though may have equitable interests. One cannot be entitled to claim against the other.
   

Conclusion

7. Counsel for the defendant did not cite any law in support of his argument. Court is of the view that the relevant law is Section 4 (4) (a) of the Lands and Titles Act (Amendment) Act 2014 (No. 11 of 2014). That section provides that the COL shall hold interests in land for and on behalf of the government. That provision is in agreement with the register, which shows that the COL is the Perpetual Estate title holder of the land in dispute.
   
8. As a matter of common sense, the COL should be the claimant for and on behalf of the government. That is to say the COL is the owner of the land in dispute for and on behalf of the government. Therefore the COL should be the claimant for and on behalf of the government. Ministry of Finance may have beneficial rights to the land. That can be accommodated through government policy based on standing arrangement, between COL and Ministry of Finance or any other government Ministry for that matter.
   
9. Although Counsel Fugui had raised this with the Attorney-General – the latter did not take heed. Court concur with Counsel that this is an abuse of Court process. The instigation of this claim is misconceived. In a similar situation, this Court has held that owner of a property must give endorsement to bring a proceeding, in its name. Without endorsement, the proceeding is misconceived, because it puts the lawyer at peril of acting without proper authority^[1]. This is a mistake and can be corrected by amendment under Rule 5.34 (b).
   
10. Orders of the Court are:
    
    • 10.1 Pleadings to be amended by naming the COL as the Claimant.
      
    • 10.2 All subsequent and incidental amendments to pleadings and sworn statements should also be made.
      
    • 10.3 Application for Summary Judgment is refused with costs to the defendant. Claimant may apply again on the amended claim.
      
    • 10.4 Mention matter on 4/10/2016, at 9.30 am.
      

THE COURT

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JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Shortland Islands Shipping Company Limited –v- Taneko (2007) SBHC 127; HCSI-CC 502 of 2006.