Manetei v Menedika [2017] SBHC 39; HCSI-CC 78 of 2017 (23 November 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case No. 78 of 2017

BETWEEN: BETTY MANETEI - First Claimant

AND: SUSAN PEGOA AND CHIEF PETERO MOROSIVO - Second Claimant

(Representing trustees of Simbo Kaukau sub-tribe)
AND: LONGDEN MENEDIKA - First Defendant

AND: ROBSON GALO - Second Defendant

AND: JULIE GADO BOSIKURU - Third Defendant

Date of Hearing: 27^th October 2017.
Date of Ruling: 23^rd November 2017.

Mr. L. Hite for the First and Second Claimants.
No Appearance for Second Defendant.
Mrs. S. Choniey for the First and Third Defendants.

KENIAPISIA; PJ:

RULING ON VARIOUS APPLICATIONS

Introduction

1. Before the court are three applications. First and Second Claimants (Claimants) applications are for: leave to amend claim and joinder of additional parties (filed 20/9/2017). First and Third Defendants (Defendants) application is for Summary Judgment (SJ) (filed 27/7/2017).

Claimants’ applications

2. Claimants justify their applications in submitting that, they sought to correct a mistake and to provide better facts. For these they need leave to amend. Additionally claimants want to bring in the Commission of Lands (COL) and Registrar of Titles (ROT) as new and additional parties, as they seek rectification of defendants registered parcels; on the ground of alleged mistake.

Application for Joinder

3. Application for Joinder is brought under Rule 3.5 and 3.6. Rule 3.5, the court may order a person to become a party to a proceeding, if the persons presence is necessary to enable the court to make a decision fairly and effectively. Rule 3.6 says, a person affected by a proceeding may apply to the court for an order to be made a party to a proceeding.
4. Rule 3.5 is applicable. There is evidence to show that COL and ROT, presence will be vital and it goes without saying, in claims for rectification of registered land, COL and ROT must always become parties, for purpose of enforcing orders made by court. Their presence is necessary to enable this court to make a decision fairly and effectively, because these are the two government agencies that are responsible for registered land in Solomon Islands.

Application for Leave to amend

5. Pleadings are yet to close. Claimants filed a claim. Defendants filed defences. Third defendant was later joined as a party. Second defendant yet to file defence. Court has before it numerous sworn statements by claimants and defendants.
6. Claimants seek to amend their claim filed 7/3/2017, on the ground that they seek to correct a mistake and to provide better facts, because of subsequent late discovery of relevant material facts. Subsequent late discovery of relevant material facts came after defendants filed their defences. Whilst claimants were seeking relief for eviction against defendants for a land first claimant bought from second claimant (customary land), defendants defence and sworn statement evidence (prima faci) shows that they own that land claimed by registered title.

Central Issue

7. The issue is, should this new material fact justify amending the claim. New material fact claimants allege is that second claimants sold the land to first claimant, after 2011, when the land was supposed to have been surrendered back to second claimant’s tribe after what Savino and Thomas as trustees; have publicly confessed to and the public tribal intention was to amend the registration so that the land could revert back to second claimant’s tribe in custom.

The Law and Issues

8. Applicants rely on Rule 5.34 (a), (b) and (c) together with Rule 5.36 (a), (b) and (c). Under the former Rule, 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. Under the latter Rule, the court has to weigh 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 proceedings.
9. As to the former Rule, court is of the view that the amendments are necessary to better identify the issues and provide better facts about each issue and also to correct a mistake. Among the issues in this case is whether first claimant has acquired a prior interest in the land before the land was registered in the defendants’ names. The central issue is as outlined in paragraph 7 above.
10. Upon reading the sworn statement evidence, a lot more issues have surfaced justifying the need for amendment. One such issue is the transfer from two original trustees (Savino and Thomas) to: Sarina and eventually the defendants. The other associated issue is for whom (which tribe) were Savino and Thomas holding this registered land as trustees noting that this was a customary land prior to registration in the duos names. And whether the transfer by the two said trustees comply with the legal requirements^[1]. Evidence suggests that the said two trustees became co-owners in trust for the beneficiary tribal members prior to the initial registration. So the pertinent issue is whether the beneficiaries were consulted by the two trustees prior to transferring the co-owned interest to Sarina and eventually ending up with the defendants?
11. Should the court decline this application, the claimants can always file a new claim based upon new facts subsequently discovered. It is wise to deal with all potential claims over this disputed property once and for all.

Amendment of pleadings at any stage

12. Pleadings can be amended at any stage of the proceedings, including at trial, so long as the requirements of the Rules are met and is in the interest of justice and fairness.^[2] I consider that in view of what I say in paragraphs 9, 10 and 11; it is in the interest of fairness and justice that the amendments are allowed.
13. As to the latter Rule, there are three factors to consider in terms of prejudice to parties: costs, extension of time and adjournment. In terms of extension of time and adjournment, matter was filed in March 2017, a fairly new case. Third defendant was made a party in June 2017. In June 2017, defendants filed defences and counter claim. In July 2017, claimants changed legal representation. In July 2017, defendants filed application for Summary Judgment. In September 2017, claimants applied for leave to amend claim and join new parties. Trial is slowed down because of these interlocutory applications, but these are normal for civil cases. Court is of the view that there is not real prejudice to defendants from extension of time and adjournment. Defendants were accorded the same in June 2017, when Julie Gado, was made the Third Defendant. I cannot see real prejudice in terms of claimants’ applications because these interlocutory are normal and defendants too are applying for Summary Judgment. Defendants have not pointed to real prejudice.

Defendants’ application for Summary Judgment

14. Defendants are applying for Summary Judgment on the basis of their defences filed in June 2017. Defendants say that Third defendant was already a registered owner of the land prior to any customary chupu transacted between claimants.
15. One of the principles for grant or refusal of Summary Judgment is that, if there is an issue for investigation or if there are real issues for contention then a trial is warranted to test those issues.^[3]
16. When I consider this case and from the sworn statements, there are many issues for proper investigation at trial. One of the central issues is, whether first claimant has acquired a prior interest in custom prior to registration of the same in the name of the Third defendant. Another issue is, the land was registered in Savino and Thomas names as joint trustees on behalf of which tribe, the Third defendant’s purported tribe or the Second claimant’s purported tribe. Other issues I have covered briefly above.
17. Now that I have allowed the claim to be amended, I cannot terminate the claim through Summary Judgment again. Other submissions like time barred claim and non -entitlement to represent tribe are left for after amendment.
18. In all that I say, the orders of the court are:-

18.1 Claimants applications are granted.

18.2 Leave granted to amend claim and to join COL and ROT as additional defendant parties.

18.3 Application for Summary is refused with no order on costs.

18.4 Parties meet their own costs.

THE COURT

----------------------------
JOHN A KENIAPISIA
PUISNE JUDGE

---

^[1] Section 195 (3) of the Lands and Titles Act (Cap 133) requires that beneficiaries must have been consulted with by the two trustees before transferring the land.

^[2] Chow –v- AG – (2002) SBGH. 68, HC cc 127 of 2000 (6^th September 2002).

^[3] Rule 9.66