Quan Shui Hai v Commissioner of Lands [2016] SBHC 51; HCSI-CC 176 of 2015 (2 May 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 176 of 2015

BETWEEN:

QUAN SHUI HAI
Claimant

AND:

COMMISSIONER OF LANDS
First Defendant

AND:

REGISTRAR OF TITLES
Second Defendant

AND:

WIWI MANATU MANGINO
Third Defendant

Date of Hearing: 12th April 2016.
Date of Ruling: 2nd May 2016.

Mr. A. Radclyffe for the Claimant.
Mrs. F. Tagini for the first and second defendants.
Mr. M. Pitakaka and Mr. J. Taupongi for the third defendant.

KENIAPISIA; PJ:

RULING ON APPLICATION FOR LEAVE TO AMEND DEFENSE

1. Pleadings have closed. The discovery stage has also closed. Matter already reached the Pre-trial conference stage (“PTC”) on 22/1/2016. I adjourned the said PTC, because the first and second defendants wanted to amend their defence. Today is the hearing of first and second defendants’ application for leave to amend their defence. Claimant did not oppose amendment, but briefly made oral submissions in support. The third defendant opposed amendment.
   

Application to amend defense because of mistake

2. The first and second defendants filed an application to amend their defence on 12/2/2016. Applicants rely on the sworn statements filed by Henry Murray and Nelson Naoapu also filed the same date. Henry is the Permanent Secretary of Ministry of Infrastructure Development. Nelson is the Commissioner of Lands. The prime relief sought is to seek leave of the Court to amend their defence filed 22/7/2015, on the ground of mistake.
   
3. The said mistake relates to new instructions coming from the Ministry of Infrastructure Development (“MID”). The new instruction is that the land allocated to the third defendant is located inside a “road reserve”. Supporting sworn statement (ss) evidence says land Parcel Number 191-003-193 (“PN 193”) is situated, within a “road reserve zone”, along the Tandai Highway. No form of development should take place within a “road reserve zone”, because, it is a land corridor that encompasses roads, drainage and drainage structure. As I gather from Murray’s technical opinion, in ss evidence, if a road reserve is interfered with (through development), serious problems may be caused to the public including: lack of drainage-over flooding – damage to properties and lack of space for public utility services such as power, electricity and water.
   
4. One does not have to be an engineer to understand the public problems that Henry^[1] talked about. Honiara City is a result of poor planning and every time there is heavy down pour (rain), we see car driving in water pools along Kukum Highway and other parts of the city. You see everywhere buildings constructed right onto main highways. The poor or lack of proper planning and coordination that created these kinds of public headaches in Honiara City is a concern for all right thinking city residents.
   
5. And so the first and second defendants, based on recent technical advice, now want to amend their defence. The ultimate effect will be that, they now admit mistake in regards to allocation of PN 193, to the third defendant, which support the claimant’s claim against the third defendant. Assuming this succeeds at trial, the allocation to the third defendant is likely to be cancelled.
   
6. The applicants rely on Rule 5.34, in seeking to amend their defence. Under the said Rule, a party may amend a statement of the case to better identify the issues between the parties; correct a mistake or defect; or to provide better facts about each issue.
   
7. Rule 5.36 provides that in deciding whether to allow amendment, the Court must have regard to whether another party would be prejudiced in a way that cannot be remedied by awarding costs or extending time for anything to be done or adjourning the proceedings.
   

Issues?

8. There are two issues here. First, whether the purpose of the amendment is to better identify the issues, or to correct a mistake or defect, or to provide better facts about each issue. Second, whether another party would be prejudiced in a way that cannot be remedied by awarding costs or extending the time for anything to be done or adjourning the proceeding.
   
9. As to the first issue, I am satisfied the amendments are necessary to better identify the issues and to provide better facts about each issue and importantly, to correct a mistake – a fundamental mistake in view of what I said in paragraphs 3 and 4 above. Among the issues in this case is whether the Commissioner of Lands (“COL”) gave PN. 193 to the third defendant under mistake – that mistake the claimant aver relates to the location PN 193 that interferes with a “reserve zone” along Tandai Highway. These are issues for trial, but such issues must be made clear from the amendments in the pleadings.
   
10. I think the mistake, is a ground for amending the defence. The third defendant says that the material time to consider mistake was at the time of granting PN 193 to the third defendant in April 2015; not in late 2015, when MID carried out a survey. With respect, I disagreed. Mistake is an action or opinion that is not correct or that produces a result that you do not want.^[2] The Claimant avers that the reserve already existed at the material time of grant, hence the claim for mistake. The mistake is a concern not only for the COL; but one of public concern, because of the potential problems posed to the public. This is the result from the mistake that the first and second defendants do not want and have not realised at time of grant of PN 193 to the third defendant. But of paramount importance now is the discovery of the mistake in late 2015, makes it necessary to amend the defence, perfectly well under Rule 5.36, in early 2016. Amendments to pleadings in my view can be made at any time, even before trial commences, so long as the requirements of the Rules are met.
    

Prejudice?

11. On prejudice, I think the third defendant had gone too far in his submission on prejudice – in saying that the mistake would make his client to lose his case and subsequently lose his land. This is a risk his client faced anyway from this claim, if the claimant should prove his case. The prejudice envisaged under Rule 5.36 (a), (b) and (c) are different and are confined mainly to costs, extension of time and adjournment. My view is that in terms of extension of time and adjournment there is no prejudice to the third defendant or indeed to any of the parties. This case is progressing very fast and with minimum delay. Matter filed in May 2015 is almost ready for trial by May 2016, having reached PTC in February, 2016. In terms of costs, I would agree that the third defendant had been prejudiced; having to incur extra costs from the adjournments and from opposing the proposed amendments caused by mistake on the part of first and second defendants. But then, again those prejudices could be remedied by awarding costs to the third defendant. I award costs of the adjournments since PTC in February 2016 to the third defendant. All these costs are to be paid by Attorney-General (COL and Registrar of Titles) and claimant for his role in supporting the application.
    

Promissory Estoppel and Waiver?

12. The third defendant also argued in opposing amendment that promissory estoppel and waiver are equitable considerations, I should use not to allow the amendments, because, the first and second defendants’ initial admission (pleadings) had created an expectation in the third defendant’s mind that the action will proceed as initially pleaded. Unfortunately, I consider the employment of this equitable principle redundant, when the Rules laid down sets of grounds upon which I should exercise my discretion – those grounds as in Rule 5.34 and 5.36. In considering those grounds, I exercised discretion to grant leave to amend, as discussed above.
    
13. The application succeeds and I order as follows:
    
    • 13.1 Leave granted to the first and second defendants to amend their defence.
      
    • 13.2 First and second defendants shall file and serve their amended defence on 6^th May 2016.
      

13.3 Costs on standard basis, of all adjournments since PTC on 22/01/2016, including today’s hearing are awarded to the third defendant against the claimant, first and second defendants in equal portion.

• 13.4 Leave also granted for any consequential amendment to pleadings.
  

THE COURT

JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Henry is the Director under the Roads Act (Cap 129).

^[2] Oxford Advanced learners dictionary definition.