Noro v Attorney General [2016] SBHC 50; HCSI-CC 90 of 2013 (28 April 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 90 of 2013

BETWEEN:

JOSEPH NORO, JOHN ILEI, DANIEL BUTO AND
NESTOR GHOALA PORU
Claimants

AND:

JOHN SAKI AND JENNY SAKI
Defendants

AND:

ATTORNEY-GENERAL
(for Commissioner of Lands)
Second Defendant

AND:

ATTORNEY-GENERAL (for Registrar of Titles)
Third Defendant

Date of Hearing: 7th March 2016.
Date of Ruling: 28th April 2016.

No appearance for the Claimants.
Mr. W. Rano for the Applicant/First Defendant.
Mrs. R. Soma for the Second & Third Defendants.

KENIAPISIA; PJ:

RULING ON APPLICATION FOR SUMMARY JUDGMENT
AND APPLICATION FOR STRIKE OUT

APPLICATION FOR SUMMARY JUDGMENT

1. The first defendants filed an application for Summary Judgment or in the alternative, striking out on 22/7/2015. The supporting Sworn Statement (ss) by Jenny Saki, was filed on the 25/11/2015. Claimants or their legal representatives were not in Court. There was no prior explanation for their absence.
   
2. Application for Summary Judgment (SJ) or Application for Striking Out are ways to bring to an early ending, a proceeding without going to trial. Early endings to proceedings are governed under Chapter 9 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (“The Rules”).
   
3. The first defendants are applying for SJ on the basis of their defence – that was filed on the 06/05/2015. The first defendants say that they believe the claimant’s claim has no real prospect of succeeding. Therefore there is no need for trial of the claim.
   
4. I first remind myself of the principles to apply in deciding, whether or not to grant SJ, without trial. The principles are in the Rules. They include: SJ will not be granted if there is an issue for investigation or if there are real issues for contention, then a trial is warranted to test those issues,^[1], whether the party opposing SJ has an arguable defence, or in the claimant’s perspective, the defendant has no arguable defence^[2], or in the defendant’s perspective, the claimant has no real prospect of succeeding^[3]. To succeed in an application for SJ, the applicant’s case must be based on clear evidence supporting the facts pleaded in a claim or defence^[4] as the case may be. This is why the Rule calls for the applicant for SJ or the opposing party to file a ss verifying the facts in the claim or defence, as the case may be. Case law authorities^[5] have also applied these principles. With these principles in mind, I now consider the application for SJ.
   
5. The claimant’s claim is for rectification of Parcel Number 192 – 008 – 90 (“PN. 90”) on the grounds of mistake and fraud against the first defendants. And for the claimants to be registered as owners of PN. 90 in place of the first defendants.
   
6. When I look at the claim, the defence and the ss in support of application for SJ, it is my considered view that there are issues for investigation at trial, still outstanding at this stage. And those issues relate to allegations of fraud and mistake against the first defendant and the Commissioner of Lands (COL).
   
7. Firstly, the common issue here is return of alienated land. Both the claimants and the first defendants say in pleadings and the verifying ss that they are descendants of the original vendors of PN 90. And hence both are equally entitled to return of PN 90, on the basis of government policy to return alienated land back to original landowners. It is public knowledge and the court takes judicial notice that there is a standing general policy (“policy”) to return alienated land to original landowners. I am aware, that a lot of Solomon Islanders have benefited from this policy already. What I am not aware of is the procedure and processes governing return of alienated lands, to original land owners, under the policy. I think some of those procedure and processes are deposed to in the ss by Silva Dunge (former COL). They include three months’ notice and proper consultation. Therefore, former COL is seen as admitting mistake. These become live issues to be settled at trial. The other live issue is fraud. My finding will be different in the absence of a ss by former COL. It is my respectful view that the proceeding should not terminate early via SJ. The Court is not satisfied to give SJ pursuant to Rule 9.64 (b) and (c). The Court should sparingly terminate cases early through SJ.
   

APPLICATION TO STRIKE OUT

8. The next is application to strike out as an alternative, on the ground that the claim is frivolous and vexatious or that it discloses no reasonable cause of action, under Rule 9.75.
   
9. Striking out a claim and dismissing a case summarily, is a drastic action which should be done only in very clear cases, where the claim is baseless and does not disclose a cause of action.
   
10. It should be done only where the statement of claim and the ultimate facts asserted do not disclose even an arguable cause. It is not in the interest of justice that such a case should be allowed to proceed to trial.
    
11. In deciding, the question whether a reasonable cause of action is disclosed, the Court looks only at the claim and considers the facts asserted in the statement of the case and then decides whether, assuming that the asserted facts are true, there is a viable cause of action, against the defendant for the relief sought^[6]. In doing so, the Court does not require extrinsic evidence to show whether there is cause of action, nor will the Court carry out a minute examination of the documents and the facts of the case to see whether the claimant does have a cause of action^[7]. To do that would not only be to usurp the function of the trial judge, but would lead to deciding the merits of the case on ss only, without discovery and without oral evidence tested by cross-examination.^[8]
    
12. However, under the Rules, the Court may receive evidence in support of application to strike out^[9]. Even so, where the statement of claim and the facts asserted, plus evidence (if available) do not disclose even an arguable case, or where a point of law has been raised which makes it so clear, that the claim does not have a chance of success, time should not be wasted in allowing the claim to continue.
    
13. This claim concerns a plot of registered land, on Guadalcanal Plains, located between Metapona bridge and Don Bosco & Good Samaritan hospital. The COL granted Perpetual Estate title (“PE”) to John Saki and Jenny Saki (“Sakis”) on or around 26^th March, 2012.^[10]
    

Claimants’ Case

14. Claimants say they had attempted to get the PE in PN 90 back, on the basis of government policy to return alienated land back to original landowners. They say they are the original land owners prior to registration of PN 90.
    

Defendants Case

15. The first defendants on the other hand say that COL transferred PE in PN 90 to the Sakis, for valuable consideration. That the Sakis apply to acquire the PE in PN 90 and the COL offered the land to them and they purchased the land. COL denied that PE in PN 90 was transacted on the basis of the said government policy.
    

Is the Claim and Facts asserted disclosing an arguable Case?

16. The claim and facts asserted in my view do not even disclose an arguable case or that the claim is baseless and does not disclose a cause of action.
    
17. Firstly, the policy relied on though has been in the public domain for a long time, has not been enacted and has not become law. As such, a mere general government policy, which has yet to become a statutory law, may not give rise to a valid claim, in the absence of contract or firm commitment creating legitimate expectation between a claimant and the government.^[11]
    
18. Secondly, the claimant ought to establish on the pleadings that the purported general government policy had actually been decided upon and applied to the transfer of PE in PN 90. Claimant ought to have pleaded that government had decided to return PN 90, back to original landowners, in line with standing government policy, on return of alienated land back to original landowners. The claim clearly fell short of this. The claim only went as far to say that, claimants had made several attempts to contact the COL, to transfer PE in PN 90, back to them since August, 1998, on the basis of the said purported policy. They made subsequent follow up visits, but the COL did not meet with them despite an appointment in April, 2012.^[12] This means the government is yet to decide whether the policy relied on will apply to the transaction of PE PN 90. There is no contract or firm commitment from the government, through the COL, to transact the PE in PN 90, on the basis of the standing government policy. In this situation, there is no basis for the claim, premised on the policy. The policy was not decided upon and was not applied to the transaction of PE in PN 90. This Court cannot and does not have power to interfere^[13] with the said government policy. This Court can only assume jurisdiction in cases where government has decided upon the policy and applied it to a PE in registered land, held by the COL, that is transferred to Solomon Islanders, under the said policy and the issue is identification of original land owners by the COL. And that the COL exercised his/her discretion to grant PE to persons who are not the original landowners^[14]. This is not the case here. The pleadings clearly show that, the COL did not answer to the claimants’ enquiry to return PE in PN 90, back to them in accordance with the purported policy. I repeat the PE transaction in PN 90 was not made on the basis of the purported policy. This Court cannot therefore interfere with the general policy of the government. Palmer J as he was then; in Daii case, cited at foot note 13, has this to say:-
    

“One of the points raised by Mr. Lavery, of counsel for the defendants is, that the courts should not interfere on a policy of the government. This is a correct preposition. However the court is not interfering on any government policy here. The government policy sought to be enforced has already been decided upon. The court is here not interfering with that stated policy. What is in issue here is the question of identification of the original land owners...”

19. Thirdly all customary ownership claims, the claimants made, do not apply to a registered land. A registered land upon registration loses its customary nature, so that ownership is no longer, determined on the basis of previous custom ownership, but on the fact of registration. In other words, the register is everything, so that the person whose name appears on the register is the owner of the land.^[15]
    
20. I am satisfied the claim has disclosed no reasonable cause of action, and is frivolous and vexatious and should be dismissed. This finding is sufficient to dispose of the claim. It follows that, it is not necessary to consider the other allegations of fraud and mistake, which the claimants also raised. The allegations of fraud and mistake do not have basis too, because PN 90 was not transacted pursuant to government policy. And therefore those allegations on fraud and or mistake in regards to transferring to original landowners would also naturally fall because they are closely connected to the claim premised on the mistaken belief that PN 90 was transacted on the basis of government policy.
    

Would an amendment cure the pleadings?

21. Would an amendment cure what appear to be a defective pleading? There is no cure either, because the claimant clearly said that the COL did not answer back on their enquiries since 1998, on return of PE in PN 90, under the policy. This is not a case of defective pleadings. It is the end of the story for the claimants in April 2012, after their last unsuccessful appointment with the COL. There are no more stories after that, so that an amendment could otherwise assist to disclose a cause of action.
    
22. The orders of the Court are:-
    
    • 22.1. The first defendants’ application to strike out the claim is hereby granted.
      
    • 22.2. The claim is strike out for it discloses no reasonable cause of action.
      
    • 22.3. Claimant shall pay the costs of the applicants/first defendants on standard basis.
      

THE COURT

JOHN A. KENIAPISIA

PUISNE JUDGE

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^[1] See Rule 9.66.
^[2] See Rule 9.64(a).
^[3] See Rule 9.61 (b).
^[4] See Rule 9.59 (a), or Rule 9.61 (a).
^[5] See the cases of : John Brown & Others –v- New World Limited – CC.66/2013 and Solomon Islands Home Finance Limited –v- Jack Kaota & Another – CC. 259/2012.

^[6] Earthmovers (Solomons) Ltd - (trading as Pacific Timbers) –v- Samuel Thao and Others (Trading as Aola Timber Exports Agency) – CC. 65 of 1997.
^[7] Kimitora –v- HFC (1998) SBHC, 53; CC. 01 of 1998.
^[8] Wenlock –v- Moloney & Others – (1965) 2ALL ER 871.
^[9] See Rule 9.76 as read with 9.75.
^[10] See paragraph 2 of statement of case of claim filed 28/8/2013.

^[11] Manehanesa –v- Kelly (2000) SBHC16, HC-CC. 196/1996, top of page 4.
^[12] See paragraphs 7, 8 and 9 of statement of case in the Claim.
^[13] See case of Daii –v- Teaitala & Others – SBHC 75; HC-CC 200 of 1995 (22^nd December 1995).
^[14] See Manehamosa case at foot note 11; Daii case foot note 13 and Liligeto –v- Commissioner of Lands (1998) SBHC 74; HCSI – CC 166 of 1996 (5^th March 1998).
^[15] Peter Boso –v- Benjamin Kuria & Others – cc 424/2012.