Bentley v Pan Pacific Parts Ltd [2017] SBHC 41; HCSI-CC 139 of 2014 (4 December 2017)

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

Civil Case No. 139 of 2014

BETWEEN: COLLIN BENTLEY & DANIEL PITU - 1ST Claimant

AND: COLLIN JOEL DANIEL PITU AND PAUL KUKUKI - 2nd Claimant
(Trading as Super Island Motors Garage)

AND: PAN PACIFIC PARTS LTD - 1^st Defendant

AND: SUNRISE TIMBERS LTD - 2^nd Defendant

AND: THE ATTORNEY GENERAL - 3^rd Defendant
(Representing the Registrar General)

AND: THE ATTORNEY GENERAL - 4^th Defendant
(Representing the Commissioner of Lands)

Date of Ruling: 4^th December 2017

Mr. Laurere N for Claimants
Mr Zama J for 1^st & 2^nd Defendants
Mr Tagini for 3^rd & 4^th Defendants

RULING

Maina PJ:

Introduction

The 1^st & 2^nd Defendants in the amended application apply for orders to strike out the further amended claim pursuant to rule 9.75 Civil Procedure Rules 2007.

1. The further amended claim (“the Claim”) be struck out on the following grounds:
   
   • (a) the claim is proceedings are frivolous and vexatious does not disclose any reasonable action and an abuse of the court process on factual bases.
     
   • (b) the claim is statute barred,
     
   • (c) the Claimant by agreement estoppel in law from instituting this proceeding in so far as the 1^st and 2^nd Claimant have failed to make any attempt to challenge their own action by selling the property in Lot No. 2055 of Parcel no. 192-010-190 to the first applicant since 2003’
     
   • (d) the 1^st and 2^nd Claimant by agreement or conduct had allowed the 1^st Defendant to undertake development and improvements on the said property in Lot No. 2055 of Parcel no. 192-010-190; and
     
   • (e) The 2^nd Defendant was and is a bona fide purchaser who had purchased the said property – from Plantation Works Ltd who is not a party to this proceeding and not from the 1^st and 2^nd Claimants.
     
2. A declaration that the 1^st and 2^nd Claimants have no standing in law to institute this proceeding.
   
3. Further or in alternative, the claim be struck out on the ground that they are frivolous and vexatious and are false, embarrassing and therefore inadmissible.
   
4. Such order the court deem fit to make
   
5. Claimants to pay the applicant’s cost on indemnity basis.
   

In the brief, the Applicants (Defendants) applied to strike out the proceeding on the ground that the case filed by the Respondent (Claimant) is frivolous and vexatious statute barred and the court to declare the First and the second has no standing in law to institute this proceeding.

Applicant’s Case

The Applicant relied on the sworn statement of Managing Director of the Second Defendant Company Mr Chua Knock.

Briefly the sworn statement states that sometime in 2007 Mr Chua Knock approached the Plantation Works Limited (not a party in this case) that he intended to purchase its property to build the Second Applicant office and warehouse.

His officers made a research at the lands centre and found out the land the Parcel no. 192-010-190 was registered under Plantation Works Limited. He then arranged and facilitated all the payment to Plantation Works Limited. And the title was eventually registered on September, 10^th 2008.

Applicant said the Second Defendant was only a bona fide purchaser and the First applicant knew nothing about the claimant that point of time. And the Applicant also refers to the undertaking he had taken on the land.

In the submission by counsel for the applicant he said it is now more than 12 years since the transfer was conferred to him and the Clamant had not done anything to recover the land, thus the claimants are time barred. Counsel referred the common cases on this issue of time barred under section 9 (2) of the Limitation Act (Cap 18)

Respondent’s case

In reply Counsel for the Respondent in this application to strike out the proceeding stated he replied on the amended claim filed on 29^th January 2015, his sworn statement, application for default judgment and references to the sworn statement of Melody Perry filed on 18^th March 2015, sworn statement of statement Lieng Ping Wong filed on 26^th August 2015, sworn statement of Chua Knock filed on 26^th August 2015 and this application filed on 26^th August 2015.

Counsel submitted that these document causes issues or actions for the court to try this may be deduced from the documents relied on as noted above.

The court

There is a claim of trespass and an allegation that the Parcel no. 192-010-190 was not ever been sold and Claimant had not executed any transfer of the title of the land to First and Second Defendant.

And for the rectification of the Register, there is an allegation of false representation of the document for the purpose of transfer to the title to the Defendants

Reviewing the documents presented by the parties for this application I am satisfied the issues raise in this application should be better or raises issue for the court to deal at the proper trail for this case.

Therefore this application to strike out the claim is refused. Matter is adjourned for mention on 24^th January 2018.

THE COURT

......................................................
Justice Leonard R Maina
Puisne Judge