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Malefo v Malefo [2017] SBHC 156; HCSI-CC 47 of 2015 (5 September 2017)


HIGH COURT OF SOLOMON ISLANDS


Case name:
Malefo v Malefo


Citation:


Date of decision:
5 September 2017


Parties:
Hudson Malefo, Linton Malefo v Margaret Malefo, Brendon Oeta (Hudrick Au’u), Chachabule Amoi, Attorney General


Date of hearing:
31 July 2017


Court file number(s):
47 of 2015


Jurisdiction:
Civil


Place of delivery:
High Court of Solomon Islands, Honiara


Judge(s):
Faukona; PJ


On appeal from:


Order:
1. That the claim filed on 17th February 2015 be dismissed as its entirety. That this court refused to grant leave to file an amended claim by the Claimants
2. Order that the “Agreement” for transfer o PN 191-041-320 situated at Panatina area by the second Defendant to the third Defendant is valid and enforceable in law.
3. Order that the “Agreement” for the transfer of the property described as PN 191-032-81 situated at Bahai area, Kukum in Honiara, by third Defendant to second Defendant is valid and enforceable in law
4. The Registrar of Titles is hereby ordered and directed to register land PN 191-032-81 in the name of the second Defendant
5. The Registrar of Titles is hereby ordered and directed to register land PN 191-041-320 in the name of the Third Defendant
6. Hereby order that possession of the property in land PN 191-032-81 be given to the First and Second Defendants
7. Hereby order that possession of the property in land PN 191-041-320 be given to the Third Defendant
8. Order ejecting within 24 hours the son of the first Claimant, Hudson Malefo (Jr), and anybody resident or occupying the house on land PN 191-032-81 from continuing residing, occupying or using the said property
9. That the first and second Claimants, Hudson Malefo (Jr), their relatives, friends, agents and any person aiding them be restraint permanently from entering the house on land PN-191-032-81 and from intimidating or harassing the first and second Defendants and their dependents and invitees in their enjoyment, occupation and use of the property described as land PN 191-032-81
10. That damages to be assessed for loss and suffering incurred or encountered by the first and second Defendants as a result of the action by the Claimant and Hudson Malefo (Jr) in preventing the first and second Defendant from entering, occupying, using and enjoying the house situated on land PN-191-032-81.
11. Cost of this hearing is payable to all the Defendants by the Claimants.


Representation:
Mr. Hapa for the First and Second Claimants
Mr. G. Suri for the First and Second Defendants
Mr. W Rano for the Third Defendant
Mrs. L Fine’angano for the Fourth Defendant


Catchwords:



Words and phrases:


Legislation cited:
Civil Procedure Rule 2007, Rule 9.75, Rule.5.34, 5.36, Land and Titles Act, S.229 (2), S. 4, Land and Titles Ordinance (Old Ordinance) S.52, constitution of Solomon Islands Constitution, Schedule 3.3


Cases cited:
Car Zeiss Shiftung v Rayner and Keeler [1970] Ch 506, Abe v Minister of Finance [1994] SBHC 22, Kulabule v Eagon Resources Development Co (SI) Ltd [1994] SBHC 17, Sa’oghatoga v Mugaba Atoll Resources Company [2015] SBCA 4, Tikani v Motui [2002] SBHC 10, Hubbuck and Sons v Wilkinson [1898] UKLawRpKQB 176; [1899] 1 Q.B 86, 91, 91, Chow v AG (127 of 200), Gatu v Solomon Islands Electricity Authority [1998] SBHC 72, Ma'uana v Solomon Taiyo Ltd [1997] SBHC 106, Moore v Lawson[1915] 31 T.L/R 418, Drumond v British Medical Association [1970] 1 WLR 688, Lawrence v Lord Norrys [1890] 15 App, Willis v Earl Beauchamp [1886] 11 P.D.59, Norman v Mathews [1916] 85 L.J.KB 857, Wabia v BP Exploration Operating Co. Ltd [1998] PNGLR 8, Billy v Daokalia [1995] SBCA 5, Derry v Peek [1889] UKHL 1, Barclays Bank Ltd v Cola [1966] 3 All E, R v Simi [1985/86] SILR 69, Asset Co. Ltd v Mere Roihi [1905] UKLawRpAC 11; [1905] AC 176, Namiha Sawmilling Co. Ltd v Waione Timber Co. Ltd [1925] AC 101

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION


Civil Case No. 47 of 2015


BETWEEN


HUDSON MALEFO
First Claimant


LINTON MALEFO
Second Claimant


AND:


MARGARET MALEFO
First Defendant


BRENDON OETA (HUDRICK AU’U)
Second Defendant


CHACHABULE AMOI
Third Defendant


ATTORNEY GENERAL
(Representing the Commissioner of Land and the Registrar of Titles)
Fourth Defendant


Date of Hearing: 31 July 2017
Date of Ruling: 5 September 2017


Mr. Hapa for the First and Second Claimants
Mr. G. Suri for the First and Second Defendants
Mr. W Rano for the Third Defendant
Mrs. L Fine’angano for the Fourth Defendant

RULING ON APPLICATION TO STRIKE OUT AND DISMISSAL, AND AN APPLICATION FOR LEAVE

Faukona PJ: There are three applications which by consent are heard together. The first one is an application to dismiss the claim and was filed by the first and second Defendants on 15th March 2017. The second application is to strike out the Claim and was filed by the fourth Defendant on 5th August 2015. The third application is seeking leave to amend the claim.

  1. The application for striking out and dismissal of the claim though bear different headings, both intended to derive their basis from the same legal source, that is, Rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR 2007)
  2. The common denominator upon which both applications premise are that the Claim is frivolous and vexatious and discloses no reasonable cause of action.

Brief facts:

  1. Before the first Claimant and the first Defendant entered into a customary marriage in July 1995, they had their own families. The Second Claimant is the first Claimant’s son of the first marriage. The second Defendant is the first Defendant’s son of her first marriage.
  2. After the custom marriage, the first Defendant moved in with the first Claimant as husband and wife in customary matrimony, and eventually both were legally married on 8th July 2003 at the Central Magistrates Court.
  3. Whilst the customary marriage is still persistent, the first Claimant on 1st March 2002, applied by way of a letter to the Commission of Lands for Parcel Number 191-032-150 at Bahai. On 8th August 2005, an offer was made to the first Claimant and the first Defendant. The required fees were paid on 21st September 2007. Both then executed a grant instrument with the Commissioner of Lands. Thereafter registration was done accordingly.
  4. Later both applied as joint applicants and obtained a loan from National Bank of Solomon Islands (NBSI) to build a two storey apartment on the land.
  5. Again whilst still under the legal bondage of the marriage, the first Defendant applied to the fourth Defendant for land Parcel Number 191-032-320 at Panatina. Subsequently, the land was granted to the second Defendant, the son of the first Defendant. The fixed term estate was registered in the name of the second Defendant then.
  6. On 23rd December 2014, the second Defendant and the third Defendant entered into an agreement to swap properties. It was agreed that the third Defendant would swap his house and land on PN 191-032-81 at Bahai for the second Defendant’s land PN 191-032-320 at Panatina.
  7. As a consequence of that agreement, the second Defendant transferred PN 191-032-320 to the third Defendant. The transfer of PN 101-032-81 to the second Defendant could not eventuate because the first Claimant had registered a caveat over PN 191-032-81.

Issues:

  1. (1).Whether the registration of PN 191-032-150 in the names of the first Claimant and the first Defendant as joint owners was validly done?
(2).Whether the registration of PN 191-032-320 in the name of the second Defendant was marred by fraud?
(3).Whether the cross transfer of PN 191-032-81 and PN 191-032-320 was vitiated by fraud.

General Law on striking out/dismissal under R.9.75:

  1. Rule 9.75 conferred upon the court power to dismiss a claim or a proceeding which the court finds to be frivolous, vexatious and discloses no reasonable cause of action. The power is discretionary. In Abe v Minister of Finance,[1] the court in adopting the test in Carl Zeiss Shiftung v Royer and Keeler[2] stated,
See also the case of Kulabule v Eagon Resources Dev. Co.[3]
  1. In determining whether a claim or proceeding is decayed under Rule 9.75, the court may receive evidence in considering the application, see R9.76. Such allowance is made possible by the case of Sa’oghatoga v Mugaba Attol Resources Company[4]. The reasoning in that case is to uphold the mandatory in R9.76.
  2. In the famous case of Tikani v Motui[5], the Court had differentiated the test to be applied in “no reasonable cause of action” and “frivolous and vexatious or an abuse of process.”
  3. In respect to “no reasonable cause” the court stated at page 2, paragraph 6, as thus;
“The Court should exercise its power to strike out in plain and obvious cases[6] and where no reasonable amendment would cure the defect. Such an application is only appropriate where it is clear that the statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to what he asks[7]. A reasonable cause of action means basically a cause of action with some chance of success or where a tenable case has been disclosed for relief sought.[8] So long as the statement of claim disclose some cause of action, or raise some question fit to be decided by trial, the mere fact it is weak and not likely to succeed is no ground for striking out.[9] If however, it is found that the alleged cause of action is certain to fail the statement of claim should be struck out.[10]”
  1. With respect to frivolous and vexatious or an abuse of process, His Lordship, Palmer ACJ again stated in the Tikani case at page 6, paragraph 3;
“The jurisdiction given to the Court on these grounds is to be sparingly used and only in exceptional cases.[11] It should be exercised only where the claim is devoid of all merit or cannot possibly succeed”[12].
  1. In the case of Norman v Mathews,[13] Lush J propounded the test as follows;
  2. Further definition of frivolous and vexatious was defined by Wabia v BP Exploration Operating Co. Ltd,[14] where His Lordship Justice Sevua stated;

See also - Medical Association [1970] 1 WLR 688.at p.692.

  1. In the original claim there are eight reliefs sought. I will deal with the arguments in respect of PN 191-032-150 where the Claimants claim that the registration of the first Defendant over the parcel was done by mistake, hence the fourth Defendant would rectify the FTE in that parcel by cancelling the first Defendant’s name and substituted with the second Claimant’s name.
  2. The issue is an allegation of registration by mistake, hence, ought to be rectified. The starting point is S.229(2) of the Land and Titles Act, which clearly states that the land register shall not be rectified to affect the title of an owner, unless the owner had knowledge of the mistake or cause such mistake or substantially contributed to it by his act.
  3. It is crystalline clear that S.229 (2) points to the mistake must be done by the Commissioner of Lands and the Registrar of Titles who administered the registration processes. And that the owner had knowledge of it, or that himself had contributed to it by his act.
  4. In the case of Billy v Daokalia,[15] the Court of Appeal said;
  5. The Claimant alleged mistake as stipulated in his claim paragraph 9 which he stated that he applied for PN 191-032-150 in 2002 solely by himself. He then applied to Physical Planning for building permit by himself. He paid all the necessary fees, land rates and rents solely by himself. Therefore to include the first Defendant as a joint owner was a mistake.
  6. There is conflicting evidence related to when the first Defendant moved with the first Claimant and started living with him. The Claimant in his sworn statement said the first Defendant moved with him in April 1996 at his home at Bahai. Eventually they got married in 2003.
  7. The first Defendant in her sworn statement said she got married to the first Claimant in July 1995 in custom. And they subsequently entered into civil marriage at the Central Magistrates Court on 8th May 2003.
  8. The conflicting evidence as to when the first Claimant and the first Defendant started to live together is not relevant. The fact that both had agreed that they had entered into a statutory marriage on 8th May 2003 at the Central Magistrates Court is suffice to conclude that both were legally married as of that date.
  9. The essence of the date of marriage attributed heavily to the date being 1st March 2002 when the first Claimant applied for PN 191-032-150. The letter undoubtedly was signed by the first Claimant himself. That application was in fact made on behalf of his family (wife, children) and himself. When someone applied on behalf of his family that indicated the wife is a fundamental partner in that business was definitely included.
  10. By a letter dated 10th December 2002, addressed to the first Defendant, approving the application.
  11. On 8th August 2005, a letter of offer was addressed to the names of both the first Claimant and the first Defendant.
  12. A declaration of joint ownership dated 19th September 2007 was in the names of the first Claimant and the first Defendant who executed by signing the declaration together.
  13. The grant of the FTE in PN 191-032-150 was made to both the first Claimant and the first Defendant and was executed by both on the 19th September 2007. Two days later, on 21st September 2007, the FTE in PN 191-032-150 was registered in the joint names of the first Claimant and the first Defendant.
  14. The transfer FTE was executed by both first Claimant and the first Defendant on 20th September 2007. Both also signed the Charge on 6th December 2007 as registered owners of PN 191-032-150 in favour of Bank South Pacific.
  15. The consent by the Commissioner of Lands to BSP Charge on 13th November 2007 was addressed to both parties as registered owners of the same parcel number.
  16. The Registrar of Titles had advised of the registration of the BSP Charge to both, again as registered owner of the concern land.
  17. Initially, when the application letter on 1st March 2002 for the parcel of land was submitted, though signed by the first Claimant himself, was meant to include his family; and a wife is a member of his family. In this case the first Defendant was a wife at that time by way of custom marriage and had been living with the first Claimant since 1995 or 1996. By 1999 both had their first son Hudson Malefo Junior was born. When the application for the land was submitted both were still living together under one roof as husband and wife in custom marriage.
  18. The most significant document was the offer that was made and addressed to both the first Claimant and the first Defendant. In this case, acceptance had been done by conduct, when the required fees were paid accordingly. By accepting the offer by conduct or performance, should conclude the contract of sale. All the necessary documents from there on that made the registration possible were addressed to both, and both had equally signed the documents which require their signatures.
  19. The same applies to documents which required facilitating a bank loan. Those documents in particular were the pre-requisite ones, were addressed to both as joint owners of the land. This also include document related to bank charge which the Registrar had advised the bank that both the first Claimant and first Defendant were the registered owners of PN 191-032-150.
  20. When all the documents were addressed in the names of both the first Claimant and first Defendant as owners, and upon executing those documents where needed by both, the first Claimant had never protested, that by including the names of the first Defendant in those documents was a mistake.
  21. The rationale and irony of involving husband and wife in partnership in development and business, is one outstanding dilemma which must be accepted and supported in any community. In this case the first Claimant had fully supported his wife involved in the development, so there was no protest about any mistake in the legal sense. In fact it was unnecessary because both were legally husband and wife for the most part of their marriage. The initial part was covered under customary marriage, a worthy custom recognised by law and the Constitution, Schedule 3.3.
  22. I must therefore accept that the first Claimant only raise the issue of mistake of registration after their marriage was irretrievably broken down. Therefore reasons given as an attempt to establish on the ground of mistake are unacceptably, unsustainable and therefore frivolous and vexatious and unreasonable. Of course it is so bad. On that revelation the register ought not to be rectified.

Application for leave to amend claim in relation to PN: 191-032-150:

  1. Rule 5.34 provides that a party may amend a statement of case to better identify the issues, or to correct a mistake or defect, or to provide better facts about each issue. And that any amendment can only be made with the leave of the court.
  2. Rule 5.36 makes it plain that in deciding whether to allow an 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 adjourn the proceeding.
  3. In the Claimants application for leave to file amended draft claim, the Claimant omitted totally from dealing with PN191-032-150, in the draft amended claim. I do not seem to understand whether the current dispute by the first Claimant and the first Defendant be cured by that amendment or omission.
  4. Since 15th December 2014, or little prior to that, the marriage relationship between the first Claimant and the first Defendant became deteriorated and subsequently both went their own paths. If for some reasons the Claimants prefer that PN 191-320-150 to remain a matrimonial property, then two options is anticipated. One, that ownership of that property was intended to be litigated at divorce proceedings should parties decided to. Secondly, that the first Claimant has in mind to reconcile the marriage and allow a reunification by the parties on a later date.
  5. If option one takes precedent over option two, then it is a waste of time to defer litigation of the property until divorce proceedings are taken. Since the issue will be the same, the parties will be the same, the evidence will be the same as had been filed in this case, in my view, the amendment to omit PN 191-320-150 from this case is ridiculous and serves no purpose. In deed the reasons for such omission was never pleaded nor even hinted at the submissions.

Case in respect of PN 191-041-320:

  1. Concerning the above FTE land in which the registration was done in the name of Hudrick Au’u. The title was held by him until the swap over was arranged and an agreement was executed with the third Defendant and the transfer instruments were effected to honour the agreement.
  2. The claimant alleged that the first and the second Defendants acted fraudulently in acquiring the land and subsequent dealings with the third defendant to agree to a swap over. Therefore under S.229 of the Land Titles Act the fourth defendant ought to rectify both fixed term estates in PN: 191-041-30 is PN: 191-032-81.
  3. The Claimant alleged fraud based on two grounds. One, that the first Claimant paid all costs, including fees, land rates and rents, and secondly, that there is no natural person known as Hudrick Au’u.
  4. To measure the actions alleged in the two grounds and translate them as to whether fraud was committed or not. It is important to define the word “fraud” and identify whether the elements of fraud had been breached.
  5. In Tikani v Motui[16] Palmer (ACJ) adopted the definition of fraud contained in Derry v Peek[17] stated:-
  6. The definition in Derry was also adopted in two other Solomon Islands cases Civil Case No. 301 of 1993 and Civil Case no. 119 of 1993.
  7. Lord Denning also define “fraud” in the case of Barclays Bank Ltd v Cola[18] which was adopted in this jurisdiction in the case of R v Simi Pita[19]. The definition stated,
  8. In Assets Co. Ltd v Mere Roihi & Others,[20] Lord Lindley define fraud as thus,
  9. In the case of Namiha Sawmilling Co. Ltd v Waione Timber Co. Ltd[21], Lord Buckmaster described “fraud” to mean,

“The act must be dishonest and dishonesty must not be assumed solely by reason of knowledge of an unregistered interest”.

  1. In the case of Billy v Daokalia[22] the court stated that the claim of fraud or mistake therefore must be necessarily linked to the time when registration was obtained made or omitted. The knowledge referred to in subsection (2) accordingly, must also be confined to that time period when registration was obtained or made. If the registered owner had obtained possession and acquired the interest for valuable consideration without knowledge of the omission, fraud or mistake, then he is entitled to rely on the protection in section 229(2) of the Land and Titles Act.
  2. By the sworn statement of the first defendant filed on 15 February 2017, she deposed at paragraph 6(4) that she applied for PN 191-041-320 in the name Hudrick Au’u, her son of the first marriage. She made it clear to Mr. Olofia Fatai (former Assistance Commissioner of Lands) that she used that name instead of her son’s real name of Brendon Oeta for fear the first claimant would angry.
  3. Mr Fatai confirmed in his sworn statement what the first defendant deposed in paragraph 6(4) above. He further stated that it was the first Defendant who enquired with him about the availability of the land. Mr Olofia then opened a new Lap File in the name of Hudrick Au’u, and later a letter of offer was made to the name Hudrick Au’u.
  4. Mr Olofia further stated that later in time the first Defendant brought her son the second Defendant to sign the grant transfer instrument in his presence and Dalcy Afia before registration.
  5. Apparently it would occur from evidence that the first Claimant had never involved neither attended the Urban Unit when the first and second Defendant made regular checks on the process to acquire the land. All that he complained of was the land was registered in the name of an un-natural person and that he had met all the expenses before the land was registered in the name of the un-natural person (the second Defendant).
  6. The allegation so for as PN: 191-041-320 is concerned is in respect to fraud alleged to have been committed. Applying the law in Billy v Daokalia[23] fraud must necessary linked to the time when registration was obtained. And S. 229(2) of the Land and Titles Act expressly stated that the owner must have knowledge of that fraud or himself contributed to it by his act.
  7. In this case the first Defendant approached the Assistant Commissioner of Lands and informed him that she would like to apply for the FTF in name of her son using Hudrick Au’u whose real name is Brendon Oeta. The reason for using that was explained quite frankly. Subsequently an application was filed and an offer was made in the name of Hudrick Au’u and the land was registered in that name.
  8. Is that an act of fraud, if so, who is it that criminal act of fraud or misrepresentation was intended to prejudice, or will cause detrimental to, or deprive. Was it meant for the Claimants to deprive them of their rights? If so, what rights was it and in what way? Logically the land is a state own land and the Commissioner of Lands pursuant to S.4 has the power to administer and to deal with the interest in that land.
  9. If the first and second Defendants intended to defraud by using a different name to the Commissioner of land, hence, made a wrong representation to him knowing that the representation was believed not to be true. So it would be the Commissioner of Lands will suffer the effect of the fraud and not the first and second Claimants. Hence S.229 (2) applies that the first and the second Defendants substantially contributed to fraud. But is that the nature of their act?
  10. I find it is difficult to comprehend. The elements of fraud have not been established, hence there was lack dishonesty, therefore no fraud. Use of name is a choice of a person. If a person wants to be known and called by a name there is no fraud in it. It is unlawful to use someone’s name with intention to defraud that person; for instance obtaining signature by fraud, or wrongly representing a person with intention to defraud.
  11. Another hypothesis is in regard to change of names by an employee which may do so by way of filling a statutory declaration. In this case the allegation was not directed at any employer. The first and second Defendants are not employed and the act complained of was not done to prejudice their employers, the Claimants.
  12. I think a person wishes to change name and be known by a name of his choice is a freedom of expression a guaranteed and protected under S.12 of the Constitution.
  13. There is no law prohibiting the second Defendant from using a name of his choice. What matters most is that person or authority with which the second Defendant deals with is aware of the choice of charge of name. In this case recipient of the application for the land Mr Olofia actually identified the second Defendant who appeared before him physically and as a real person. So he took note and acknowledged the actual person he was dealing with. Therefore there is no fictitious person.

Alleged payment of costs fees and rents:

  1. The first claimant alleged that he paid for all the cost including fees, land rates and land rent for the land at Panatina PN: 191-041-320.
  2. First and foremost is that there is no evidence to verify that allegation. Even if he did there is evidence at paragraph 6(2) of the first defendant sworn statement, that as wife she would ask her husband for money to assist her in her needs. Of course she has the right as a wife. Money would have been used for the payment of all the costs; again she has the right to use it at her own will and choice.
  3. I noted the offer was made on 29th September 2008 followed by grant on December 2008 and registration on 12th December 2008. Those events took place whilst the marriage between the first Claimant and the first Defendant was current and still remain intact and parties were very much committed to each other. If the first Claimant should be a joint owner of the parcel because he had met the monetary requirements in the offer, then it would be proper an agreement must be executed at the initial stage, in this case there was none.
  4. The first Defendant had made it clear in her sworn statement if the first Claimant is complaining about money he had given her, then it was a different matter from land; his claim should be in monetary term and not for the land, but has to prove his expenditure of the money by way of evidence.
  5. I find here was no act of fraud committed by the fourth defendant who the first and second Defendants had knowledge of or had been contributed to by their act. Therefore, I must refuse to make an order to rectify the land register to register the name of the first and second Claimants instead of the third Defendant.

Swap over agreement of PN: 191-041-320 PN.191-032-81:

  1. Parcel Number 191-032-81 is situated at Bahai and is owned by the third Defendant. And PN 191-041-320 is situated at Panatina and is owned by Hudrick Au’u the second Defendant.
  2. There was a written agreement endorsed by the second and the third Defendants to swap over their lands. That agreement was consented by the Commissioner of lands. As a result the registration of PN: 191-041-320 was made in the third Defendants name and PN: 191-032-81 to be registered in the second Defendant’s name. The transfer of PN: 191-041-320 to the third Defendant was valid because at all material time the second Defendant was the former registered owner and not the first Claimant.
  3. In relation to PN 191-032-81 that is yet to be registered in the second Defendant’s name. That transaction is also valid because the former registered owner was the Third Defendant and not the first Claimant.
  4. From material evidence it is crystalline clear there was no fraud committed or contributed to by the second and fourth Defendants in respect of the transaction of both parcel numbers. The fact that the agreement was a private dealing between the second and third Defendants which the first Claimant was not a party. Therefore he cannot sue to question the transfer and swap over transactions. He is not a party to the agreement.
  5. Indeed there is no evidence at all to support any act of fraud committed by the parties. This court must refuse to grant order to rectify registration of PN 191-041-320 in the name of the third Defendant by cancelling it and replaced with the first and second Claimants names. That is frivolous and vexatious and discloses no cause of action which must be dismissed. The caveat placed over PN 191-037-81 be removed with immediate effect to allow transfer to the second Defendant to take effect forthwith.

Application for leave to amend claim to cure the defects concerning PN-191-041-320:

  1. So far as PN 191-041-320 is concerned, the Claimants seek to remove third and fourth Defendants from being a party. If that is intended to be so, including removal of fraud against both, then would it operate legally by maintaining fraud against the first and second Defendants?
  2. Section 229 of the Land and Titles Act, and the case of Billy v Daokalia is very clear on this point. Fraud cannot be committed by a registered owner alone. An owner of a title is just one component of the entire fraud package. It must also include the Commissioner of Lands and the Registrar of Titles. The offence that is prompted by S.229 included the Commissioner of lands and the Registrar of Titles in registering the owner, whilst the owner at that time had knowledge of such, or himself substantially contributed to it by his own act. If that is proven by evidence then the court may rectify the register. If no fraud is proved against the three parties then the court will not order rectification of the register so as to affect the title by the owner. In fact S.229 (2) is a protective provision which the owner can seek refuge.
  3. To remove the third Defendant will leave the formal agreement executed by the second and third Defendants at stake. The Claimants did not even have a fraction of right to intervene in that private agreement since they were not privity to it
  4. The agreement to exchange titles had been done and registration had begun to take effect. The second Defendant cannot be allowed to walk away with PN 191-041-320 when the fate of the agreement has not been finally determined. It can only be determined upon application for dismissal of the claim or upon application for determination on the counter-claim, or upon determination after full trial.
  5. It would appear the Claimants’ allegation of fraud is basically to impugn the agreement. However, it would be on error to try to allow one party answerable to an allegation of fraud, which later agreed with another party for an exchange to transfer.
  6. It is cumbersome to note that the Claimants have never mention the caveat imposed on PN 191-032-81 which delayed transfer in the name of the second Defendant. Now if the case is withdrawn against the third Defendant then he will walk out with profit. As such, will cause repercussion to the second Defendant – he will suffer prejudice. And the agreement which had progressively been implemented will be a mockery not benefitting the second Defendant, therefore vitiating the motives of the parties.
  7. In my humble view, the draft amended claim does not fulfil or drafted in consonant with rule 5.34 and 5.36. They do not even provide a cure for the original claim, but further foster frivolous and vexatious claim which do not disclose reasonable cause of action, therefore must be dismissed in its entirety.

Counter-Claim:

  1. I have decided as above. There is no mistake or fraud committed by the Commissioner of Lands, the Registrar of Title which the first and second Defendants had knowledge of or substantially contributed to. Therefore the relief sought in the counter-claim in relation to PN 191-041-320 is hereby granted accordingly.

ORDERS:

  1. That the claim filed on 17th February 2015 be dismissed as its entirety. That this court refused to grant leave to file an amended claim by the Claimants.
  2. Order that the “Agreement” for transfer o PN 191-041-320 situated at Panatina area by the second Defendant to the third Defendant is valid and enforceable in law.
  3. Order that the “Agreement” for the transfer of the property described as PN 191-032-81 situated at Bahai area, Kukum in Honiara, by third Defendant to second Defendant is valid and enforceable in law.
  4. The Registrar of Titles is hereby ordered and directed to register land PN 191-032-81 in the name of the second Defendant.
  5. The Registrar of Titles is hereby ordered and directed to register land PN 191-041-320 in the name of the Third Defendant.
  6. Hereby order that possession of the property in land PN 191-032-81 be given to the First and Second Defendants.
  7. Hereby order that possession of the property in land PN 191-041-320 be given to the Third Defendant.
  8. Order ejecting within 24 hours the son of the first Claimant, Hudson Malefo (Jr), and anybody resident or occupying the house on land PN 191-032-81 from continuing residing, occupying or using the said property.
  9. That the first and second Claimants, Hudson Malefo (Jr), their relatives, friends, agents and any person aiding them be restraint permanently from entering the house on land PN-191-032-81 and from intimidating or harassing the first and second Defendants and their dependents and invitees in their enjoyment, occupation and use of the property described as land PN 191-032-81.
  10. That damages to be assessed for loss and suffering incurred or encountered by the first and second Defendants as a result of the action by the Claimant and Hudson Malefo (Jr) in preventing the first and second Defendant from entering, occupying, using and enjoying the house situated on land PN-191-032-81.
  11. Cost of this hearing is payable to all the Defendants by the Claimants.

THE COURT.

[1] Unreported, HCSI, Civil Case No. 197 of 1994 (12 August 1994)
[2] [1970] Ch.506
[3] Unreported, HCSI, Civil Case No. 295 of 1993 (6 June 1994)
[4] [2015] SBCA 4; SICA-CAC (20th April 2015)
[5] [2002] SBHC 10; HC-CC 29 of 2011 (18 March 2002)
[6] Hubbuck & Sons v Wilkinson [1899] 1 2.3 86, 91
[7] Chow v AG, cc127 if 2000.
[8] Gatu v SIEA, AG & Gold Ridge CC 59/97; Ma’uana v Solomon Taiyo Limited CC109/97.
[9] Moore v Lawson [1915]31 T.L.R 418.
[10] Drumond v British Medical Association
[11] Lawrence v Lord Norrys [1890] 15 App. Cas.210 at P. 219.
[12] Willis v Earl Beauchamp [1886] 11 P.D 59
[13] [1916] 85 L>J KB 857, 859.
[14] [1998] PNGLR 8 746.
[15] [1995] SBCA 5; CA
[16] [2002] SBHC 10; HC-CC 29 of 2001 (18th March 2002)
[17] [1889] 14 App. Case 337.
[18] [1966] 3 All E>R 948
[19] [1985/86] SILR 69.
[20] [1905] UKLawRpAC 11; [1905] AC 176, P.210
[21] [1925] AC 101,P 107
[22] Ibid (16)
[23] Ibid (22)

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