Hona v Attorney General [2016] SBHC 160; HCSI-CC 444 of 2014 (30 September 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

(Faukona PJ)

Civil Case No. 444 of 2014

BETWEEN: JOHN HONA, PLINTY VIGULU, JAMESLY Claimant
HALO and HAPPI CHRISTMAS OF Manabusu
Village, Marovo Lagoon, Western Province.

AND: ATTORNEY-GENERAL First (Representing the Commissioner of Lands Defendant
and the Registrar of Titles)

AND: CHACHABULE AMOI of P O Box 1106, Second
Honiara. Defendant

AND FAIR TRADE COMPANY LIMITED of Third
P O Box 1106, Honiara Defendant

Date of Hearing: 19^th July 2016 and 29^th August 2016
Date of Ruling: 30^th September 2016.

Mr D. Marahare for the Claimants
Mr S. Banuve for the First Defendant
Mr w. Rano for the Second and Third Defendants

RULING

Faukona PJ: This is an application for an order to dismiss the counter claim and cross claim filed by the second and third Defendants on 2^nd November 2015. The Counter claim was against the Claimants and cross claim was against the first Defendant.

2.	At the hearing of this application, the Counsel for the first Defendant supported the submissions made on behalf of the Claimants.
3.	A claim in Category A was filed by the Claimants on 22nd December 2014. The first Defendant filed its defence on 25th February 2015, and the second and the third Defendants filed their defence on 26th February 2015. On 10th March 2015, the second and third Defendants filed their amended defence and counter- claim.
4.	On 4th September 2015, a Consent Order was signed and perfected by Justice Maina. Part of the Consent orders was a Deed of Settlement, which had no date of execution on it.
5.	On 2nd November 2015, the second and third Defendants filed their counter-claim against the Claimants and cross- claim against the first Defendant.
6.	On 9th December 2015, the claimants filed this application to dismiss the counter and cross claims. The Counsel for the first Claimant apparently supports the application.
7.	The Claimants are members of the G eruana tribe of vagunu island, Marovo Lagoon, Western Province. They were previously been registered as joint owners of the perpetual estate in PN 143-001-25.
	The issue:
8.	Are the second and the third Defendants (Claimants (1) and (2) in the counter and cross claims) have standing to seek rectification on behalf of the Commissioners of Lands, another party, and not for themselves?
	Standing or Locus standi:
9.	The case pleaded by Mr Rano in the counter and cross claim is that it was the Attorney General who advised to terminate the offer made to the Claimants; that the Commissioner of Lands denies executing the transfer documents and alleged her signature was forged. The first registration had paved the way for a new agreement endorsed by the Claimant and the first Defendant, which led to the issuant of the grant of profit to the first Defendant. In summary, Mr Rano averts that despite knowledge of the fraud the first Defendant proceeded to enter into the Consent Order with the Claimants. Therefore the Consent Orders perfected on 4th September ought to be set aside and that rectification be ordered and removed the names of the Claimants, and the Commissioner of Lands be registered as owners instead.
10.	Mr Marahare on the other hand submits that the cross Claimants (Defendants (2) and (3)) are only holders of a grant of profit, which is still effective and valid. Therefore, they cannot be entitled to seek rectification under Section 229 (1) of the Land and Titles Act. Secondly, they are seeking rectification on behalf of the first Defendant as opposed to themselves. Legally such relief could not be available to them as the first Defendant had already consented to the rectification and the transfer of the legal interest in the estate. The only right the second and third Defendants have as subsisting is limited to grant of profit and not rectification.
11.	Counsel for the Attorney General representing the Commissioner of Lands and the Registrar of Titles by clear implication is in favour of the application. He summed up by submitting that the relief sought in this case is the same as in Civil Case No: 388 of 2014, which had already led to rectification of PE register for PN: 143-001-24. In addition, it would be difficult for the second and third Defendants to seek rectification in favour of the Commissioner of Lands, which had been consented to transfer in both proceedings.
12.	The cream of the Consent Orders was the rectification of the title in PN 143-001-24, which by then facilitates re-registration in the names of the Claimants. Therefore, left no title to be rectified. Hence, the cause of action against the first Defendants was settled anonymously. The only issue left is the grant of profit pursuant to relief 3 of the original claim, which ought to be extinguished.
13.	Order 5 of the Consent Orders expressly stated that the operation and implementation of such Orders would not in any way bring about prejudicial effect in respect of the cause of action against the second and third Defendants. In my view, that is absolutely incorrect, the reason that supports my view is that the second and the third Defendants also pleaded rectification of the same estate, not for themselves but in the name of the Commissioner of Lands, on the grounds of alleged fraud and mistake in the first registration. It is cumbersome to assume that the cause of action against the second and the third Defendants are still on foot. There is no longer an estate left to rectify; the assumption is a mere myth.
15.	To persist that the Consent Orders do not prejudice the cause of action against the second and the third Defendants does not make any sense. It seems to be accepted that the grant of profit, which was registered can be held on to as an overriding interest. Subsequently will be distinguished when the issue is finally determined by the Court.
16.	That assertion may deem as a suggestion of a way forward but lacks any merit. The fact is that the second regime of Consent Orders, without doubt, were finalised after some time of conferencing and negotiations. The end result appear fizzy and seems to reflect the circumstantial background from which any proper assessment could suggest a probable collusion with intention to defeat the cause of action against the second and the third Defendant.
17.	In any event, any action taken to circumvent the rights of the second and third Defendants to be heard can be assessed from certain issues. One of which relates to the fact that if reliance is simultaneously placed on the first Consent Orders, what was the purpose of including the second and third Defendants in this case. It could have been proper and procedural if the Claimants and the first defendants negotiated the manner in which to enforce the first regime of Orders. And could have been easy and less complex if the current second and the third Defendants who were not parties to the first case (CC No. 388 of 2014) were not included in this case. To include them now questions the motive of Claimants.
18.	The second issue which may put to test as to the strength of the second Consent Order is that, whist the Attorney General is representing the Commissioner of lands and the Registrar of Titles, in this case, the Consent Orders may be perceived as running contrary to the evidence of the Commissioner of Lands which was filed on 10th March 2015 and was intended to support the first Defendant. However, the content reflected otherwise; in reality it was supporting the second and third Defendants case.
19.	A Counsel receiving instructions, which subsequently reduce to a sworn statement, decided whether such sworn statement supports his case or not. The fact that he had filed indicated that he had accepted the evidence as fully supporting his case. In the current case, the Counsel representing the first Defendant participated in framing of the Consent Orders which absolutely contrary to the evidence he gathered intended to support his case now. Whether he has discretion to accept or reject his own sworn statement was an exercise that cannot be done after he had filed a sworn statement. To act contrary to his evidence is an act which Mr Rano labelled as unmerited.
20.	Upon these issues I thought, I have profoundly expounded, together with the undisputed facts that the second and the third Defendants are parties to this case who have standing and sufficient interest to question the validity of the second Consent Orders. And by filing a cross and counter-claim is advancing their unfetted rights which ought to be heard.
21. 22.	Apart from having standing or sufficient interest that could not possibly describe as not containing or upholding a cause of action. To describe the cross and counter-claim as frivolous or vexatious and does not disclose any cause of action is novelty; hence in my view is a misconceived perception. I noted the law enunciated in Sa’oghotogha V Mugaba Atoll & Ano[1] where the Court of Appeal expressly stated, “where a party has standing to sue and there is a recognisable cause of action in law is shown albeit the claim is weak it is not open to the Court to invoke Rule 9.75.
22.	In another case, Abe V Minister of Finance and Attorney-General[2] the Court stated that to strike out a claim the Court may do so in exceptional cases where it is shown that there is no reasonable cause of action and even if the Court grant leave for amendment such amendment would not cure the defects having regard to the statement in support.
23.	In this case, I find there are issues disclosing some cause of action as shown. Also, this case has no exceptional circumstances identified that may require striking out, or that the statement of claim does not disclose reasonable cause of action. I must therefore dismiss the application to dismiss the cross and counter-claim.
	Orders:
	1.	Dismiss the application to dismiss the cross and counter-claim.
	2.	Refuse to grant Order 2 in the relief sought.
	3.	Costs are awarded to the second and third Defendants payable by the Claimant and the first Defendant.
	The Court.

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^[1] 4^th April 2015
^[2] HC-CC No. 197 of 1994