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

Civil Case No. 240 of 2013

BETWEEN:	JEREMY RUA			-	Claimant
			  	  			
AND:		AARON OLOFIA			-	Defendant

Date of Ruling: 	4th August 2017

A.	Radclyffe for the Claimant
M. Bird for the Defendant

RULING ON APPLICATION FOR LEAVE TO AMEND
AND INCLUDE COUNTER-CLAIM

Maina PJ:                                     

The Defendant Aaron Olofia applies under rules 5.34, 35, 5.36, 5.47 & 7.2 of the Civil Procedure Rules 2007 to amend defence and include a counter–claim after all the pleadings have been closed. This application also comes in when this matter was listed for trial after the court had set aside the default judgment and stayed the enforcement orders. The order was granted on 24th November 2016
The application is supported by sworn statement of the new counsel Maelyn Bird filed on 6th March 2017. Counsel Bird also filed a sworn statement by her client which was filed for other case HC CC 165 of 2016. She also relies on the statement for the application.
The counsel for the Defendant stated in court that this case was earlier handled by DNS Lawyers and she came in for this case when she made the application to set aside the default judgment and stay the enforcement orders and the orders was granted on 24th November 2016. Counsel stated that a defence was filed in time and this counter-claim should have been filed but was not done. The Defendant stated or denies in his defence filed on 17th September 2013 the Claimant’s claim on the land, and this counter-claim relates to this defence.

She argues that while the pleading is already closed the court has power to grant if it thinks fit to do so and on the fact that the default judgment had been set aside. 
In this application for counter-claim, Claimant would amend the statement of the case to better identify the issues between the parties. Counsel also made reference to cases Solomon Shell Products Company Ltd v Commissioner of Lands and others HC/CC no 315 of 2014 when the court allowed the amendment to the Defence and Christian Arnold v Moses and others HC/CC no 206 of 2010 when the court allowed a counter-claim.  
Counsel for the Claimant replied to the application by firstly objected to a sworn statement to be used for this case as it is for another case (HC CC 165 of 2016). It is unusual as his client is not a party to that case. For the counter- claim it is for the rectification of titles of the land while this is a claim of trespass. He said rectification is with the Registrar of Titles. In relation to stay this case was in 2013, the sworn statement is just this year and that denies his client or is entitle for justice in a timely manner.
This case relates to registered land and currently the Defendant is in possession or occupy of the land. Defendant had filed another case H/C CC 165 of 2016 that relate to this land and named the Claimant in this case as 7th Defendant. 
The application for leave to file a counter-claim was alerted to the Claimant’s counsel by the letter of 22 February 2017 from the counsel for Defendant. She was not involved in the case until instructed to file an application to set aside judgment. And she was to seek a leave to use the sworn statement of Aaron Olofia filed on 11 November 2016 in CC 165 of 2016 in this matter. She also enclosed a copy of the counter-claim.
If a leave is granted to file the counter-claim it would consist of new material evidence that would alter the Defendant’s defence. 

Rules 5.35 and Rules 5.36 (a) (b) and (c) provide to amend defence. On that a party may amend the statement of case to better identify the issues between the parties, correct a mistake or defect, or to provide better facts about each issue. The purpose of the above provision is to bring out or better identify the issues with better facts relates to the issues. And if it continues on the current status of the case it would cause injustice to a party and would not be or properly remedied. 

For the other case it is the question of law on the first registration as allude or claims by the Claimants in the case HC: CC 165 of 2016 on this land and the Claimant in this case is named as the 7th Defendant.

It may bring out the new facts discovered to issue in this case that are necessary to better identify the issue and facts for trial of this case. If the question of the registration is determined in favour of the Claimants in case HC: CC 165 of 2016, then it will deny the Defendant for a fair trial in this case.

The pleadings can be amended at any stage of the proceeding, including at trial or even after trial under the rules if is in the interest of justice and fairness - Chow v Attorney General (200) SBHC 68; HC-CC 127 of 2000). For this case, it is just appropriate in the circumstance of this case to grant that order. 

I noted the concern raised by the Claimant for or entitle to justice in timely manner and it is also to be afforded to other persons who have the interest in this dispute and as to be allowed by the Rules of the court.

The orders sought in the application is granted.

ORDER

1.	Orders sought granted
2.	Defendant to file the counter-claim within 7 days.

THE COURT

………………………………………………
Justice Leonard R Maina 
Puisne Judge