Multi Chartering Shipping Services Ltd v Fairtrade Company Ltd [2016] SBHC 9; HCSI-CC 445 of 2013 (5 February 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case No. 445 of 2013

BETWEEN:

MULTI-CHARTERING SHIPPING SERVICES
LIMITED
Claimant

AND:

FAIRTRADE COMPANY LIMITED
First Defendant

AND:

ATTORNEY-GENERAL (Representing the Second
Registrar of Titles and Commissioner Defendant
of Lands)

Date of Hearing: 30th November 2015
Date of Ruling: 5th February 2016

Mr. W. Rano for the Applicant/First Defendant
Ms. A. Willy for the Respondent/Claimant
No appearance for the Attorney General

KENIAPISIA, PJ:

RULING ON AN APPLICATION FOR SUMMARY JUDGMENT

1. The first defendant[1] or the claimant[2] in the counter claim filed an application for summary judgment (SJ) on 20/3/2015, in light of its defence and counter claim. The first defendant relies on the sworn statement (ss) by Mr. Amoi filed 6/8/2014. The ss was however initially filed for a different purpose (application to set a side default judgment). No ss was filed directly in support of application for SJ, as required by Rule 9.61 (a) of the Solomon Islands Courts (Civil Procedure) Rules 2007 ("the Rules").

2. Application for summary judgment or summary judgment is one of the ways to bring to an early ending, a proceeding without going to trial. Early endings to proceedings are governed under Chapter 9 of the Rules. Relevant to this application are Rules 9.57 – 9.66.

3. It would appear from the said application that the first defendant is applying for SJ on the basis of its Defence and Counter Claim – that was filed on the 4/11/2014. The applicant says that it believes the Claimant's amended claim has no real prospect of succeeding and that the claimant has no arguable defence to the 1st defendant's counter claim after the 1st defendant filed its defence and counter claim. Therefore, there is no need for trial of the claim or part of the claim. Although the filed application says its defence and counter claim was filed on 27/10/2014[3], I did not see that. I only saw a defence and counter claim filed 4/11/2014. This must be a mistake.

4. We see in the Rules the principles to apply in deciding whether or not to grant SJ without trial. These include: SJ will not be granted if there is an issue for investigation or if there are real issues of contention then a trial is warranted to test those issues[4]; whether the party opposing SJ has an arguable defence; or in the claimant's perspective the defendant has no arguable defence[5]; or in the defendant's perspective, the claim has no real prospect of succeeding[6]. 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[7] 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[8] have also applied these principles. With these principles in mind, I now consider the application for SJ.

5. The 1st defendant's counter claim is for specific performance against the claimant premised upon two agreements: Financing Agreement (24/9/2011) and Land Sales Agreement (24/1/2013).

6. The first defendant's counter claim pleaded that the disputed land is now registered in the first defendant's name on the basis of the two agreements mentioned in paragraph 5.

7. When I look at the first defendant's defence and counter claim, the claimant's defence and the claimant's amended claim, it is my considered view that there are real issues of dispute still outstanding at this stage that must be tested at full trial. Firstly, is the issue on the pre-signing of transfer documents which resulted in the title of the disputed property now registered to the first defendant? This is an important fact, which was not pleaded in the first defendant's counter claim, but discovered during oral submissions. Counsel Rano for the 1st defendant submitted that the claimant failed its obligation under the financing agreement. This failure entitled the 1st defendant to exercise its right by registering a pre-signed transfer instrument (purportedly) signed by the claimant. Unfortunately, there is no clear evidence of these pre-signed transfer documents. In the absence of clear evidence, this issue must go to testing at trial, where proper and relevant evidence will be tested. When I asked about the pre-signed transfer documents, Counsel Rano responded saying those instruments were not disclosed in the ss. I looked at the ss relied on by Counsel Rano and they were not exhibited as well. Perhaps Counsel ought to know that when one apply for SJ, he/she must produce clear evidence to enable the court make a decision: "whether the defendant does not have any real prospect of defending the claimant's claim". That is why Rule 9.59 (a) requires the filing of a ss to verify the facts stated in the claim. The crucial fact on pre-signing of transfer documents was not pleaded in the counter claim either.

8. When there is no clear evidence, the transfer of title becomes a real issue of contention because the claimant in the amended claim is alleging that the transfer of title to the 1st defendant was occasioned by fraud, between the 1st and 2nd defendants. With no clear evidence on pre-signed transfer documents/instruments, it makes the issue of fraud alive until trial. This then negates the clear evidence produced by the applicant on the two contracts (financing and land sale), warranting proper scrutinizing to be made at trial. I cannot enter SJ for the claimant on this part[9] of the 1st defendant's counter claim and allow the claim on fraud by the claimant to go to trial because, both will affect the same relief of rectification of title to the disputed property and both are also closely interconnected.

9. Secondly, it also transpired that another live issue for trial is: the claimant is saying that it or Dausabea had re-imbursed in full all the monies, the first defendant had loaned to the claimant. The claimant did not produce clear evidence to support this. On the other hand, the 1st defendant did not produce clear evidence in rebuttal. It therefore becomes a live issue for trial.

10. In all that I said above, 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 defendant in the counter claim or claimant in the amended claim has an arguable defence on the allegation of fraud. These are among the real issues of contention that can only be fully canvassed at trial. Accordingly, the application for SJ is refused. Parties to prepare the matter for trial. Costs shall be in the cause. Parties may consider amending their claim or defences as the case may be. This is because during oral submissions Counsels have made submissions on facts that are not already pleaded – for instance facts on: pre-signed transfer documents and claimant not incorporated at time of contract on financing.

THE COURT

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JOHN A. KENIAPISIA
PUISNE JUDGE

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^[1] First defendant in the amended claim filed by the claimant on 11/12/2013.
^[2] Claimant in the defense and counter claim filed by the 1^st defendant on 4/11/2014.
^[3] See paragraphs 1 and 3 (b) of the statement of case in the application for SJ filed 20/3/15.
^[4] See Rule 9.66.
^[5] See Rule 9.64 (a).
^[6] See Rule 9.61 (b).
^[7] See Rule 9.59 (a) or Rule 9.61 (a).
^[8] 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.
^[9] Part alleging the 2 contracts which are clear in evidence, at this stage. The two contracts are at Exhibits 2 and 5 of ss by Amoi filed 6/8/14.