Chee Ming Wong v Talifai [2017] SBHC 146; HCSI-CC 367 of 2015 (31 August 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 367 of 2015

BETWEEN: ANTHONY CHEE MING WONG - Claimant

AND: RICHARD TALIFAI AND FAMILY - Defendant

Date of Ruling: 31^st August 2017

C. Hapa for Applicant/Claimant
F. Fagari for Respondent/Defendant

RULING

Maina PJ:
Introduction
The Claimant filed a Category A claim against the Defendants claiming that it is or was at all material times the owner and entitled to possession of the fixed term estate in Parcel numbers 192-007-196, 192-007-198, 192-007-199 and 192-007-210. Without the permission and consent of the Claimant, the Defendants and together with relatives and/agents have wrongly occupied and remained in the properties and continuing to wrongfully remained thereof.

After the Defendant filed the defence and counter-claim, the Claimant filed this application in pursuant to rule 9.57 of the Civil Procedure Rules 2007 seeking the orders to enter Summary judgment against the Defendant, although the Defendant had filed a defence and counter- claim but the Claimant believes that the Defendant does not have any real prospect of defending the Claimant’s claim.

The Applicant/Claimant

Claimant filed a sworn statement on 2^nd February 2016 to support this application confirming the fixed term estate titles in his name.

The FTE on the Register shows the Parcel numbers 192-007-196, 192-007-198 and 192-007-210 were granted to the Claimant on February 28, 2012; and Parcel no. 192-007-199 granted to him on March 27, 2012. Claimant attached as exhibits all the register titles and grant of FTE under section 122 of the Lands and Titles Act.

Claimant claim that he is a bona fide purchaser in Parcel no 192-007-198 and other and entitled to the protection of section 229 (2) of the Lands and Titles Act.

The Respondent/Defendant’s case

The Defendant in his defence denied the claim and said that his father late Rintu Talofai was registered as owner of FTE in Parcel no 192-007-198 (PN 198) and he and his family occupied and improved the same over the years. He said his late father had entered into a verbal agreement for subdivision and sale to Roger Tauvariki.

Defendant in his counterclaim alleges that a third party Mr Roger Tauvariki obtain a transfer and registration in his name by fraud. He said the transfer of PN 198 was without his father’s consent as by their agreement. And he seeks rectification order for Parcel no 192-007-198.

The Counterclaim is not accompanied by any sworn statement from the Defendant nor any copy of the Parcel no 192-007-198 (PN 198) was or is registered in his father’s name late Rintu Talofai.

Issue
Whether the Defendant does not have any real prospect of defending the Claimant's claim?

The Rule
Rule 9.57 of the Civil Procedure Rules 2007 gives power to the court to enter a summary judgment or to entertain such application, where the Defendant has filed a response or a defence but the Claimant believes that the Defendant does not have any real prospect of defending the Claimant's claim.

This is the question of law and the court is required to consider only the pleadings not the evidence.
The court should enter summary judgment only in plain and obvious cases and it should be exercised where the case or Claimant has shown beyond doubt and that the Defendant does not have any real prospect of defending the Claimant’s claim.

This requirement is as emphasised by Palmer CJ in the case Fera v Ologa [2004] SBHC 24; HC-CC 268 of 2003 (16 March 2004) when he commented:

“The court pleadings should be struck out only in plain and obvious cases..........; the powers of the court to strike out should be exercised only where the case is beyond doubt and that it is satisfied there is no reasonable cause of action................ If the Statement of Claim discloses some cause of action, or raise some question fit to be decided by the court, the mere fact it is weak, and not likely to succeed, is no ground for striking out........... But even if the pleadings could be struck out as disclosing no reasonable cause of action, where the court is satisfied that some material averment has been omitted, it will not dismiss the action but give leave to the Plaintiff to amend. On the other hand, if the court is satisfied that no amendment will cure the defect it will dismiss the action ...........”

Defendant denies the claim in his defence and counter-claim and alleges or the defence and counter-claim relates to mistake and fraud on a dealing between the Defendant’s father and a person by the name of Mr Roger Tauriki. For these Parcel numbers 192-007-196, 192-007-198, 192-007-199 and 192-007-210 were subject to compulsory acquisition and allegation of mistake and fraud occurred prior to the compulsory acquisition. The resumption of the parcel of lands with notice of resumption of the land in accordance with the terms of the grant of 7^th May 2009 signed by the Acting Commissioner of Lands Joseph Pinita and for the purpose of Public purpose i.e. Police station and clinic.

The notice of resumption were directed to the Claimant/Applicant for Parcel no. 192-007-196, Defendant Respondent for 192-007-199 and Roger Tauriki for 192-007-198.

Unfortunately the intended purposes was not materialised as the proposed purposes were shifted to other site. The pleadings filed by the Claimant/Applicant indicates that upon learning that, he approached the Commissioner of lands to develop the land and which he later obtained the titles i.e. land that was subjected to the compulsory acquisition but the intended purpose was abandoned.
What is also noted from the pleadings is the Defendant/Respondent had settled on the land prior to the acquisition, during the resumption and until to date. Now in this case the Claimant/Applicant tries to evict him from the land.

This is a Category A claim that involves land that was subject to somewhat a compulsory acquisition but the intended purpose was abandoned. Defendant is possession of the land prior to the acquisition, during and at this time. I noted the submission by the Claimant/Applicant under section 229(1) of the Land and Titles Act and this may be among the issues to be contested properly at the trial.

With this view the application for summary judgment should not be granted but matter be on trial.

ORDER

1. Application for summary judgment is refused,
2. Matter is listed for mention and direction on 13^th September 2017,
3. Cost in the cause.
   

THE COURT

Justice Leonard R Maina
Puisne Judge