Waki v Home Finance Ltd [2017] SBHC 87; HCSI-CC 47 of 2017 (20 June 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case Number 47 of 2017

BETWEEN: JAMES WAKI - Claimant

AND: HOME FINANCE LIMITED - First Defendant

AND: MARK SURA’A - Second Defendant

Date of Hearing: 31^st May 2017.
Date of Ruling: 20^th June 2017.

Mr. L. Kwaiga for the Claimant/Applicant.
Mr. M. Ipo for the First Respondent /First Defendant.
Mr. C. Fakari’I for the Second Respondent/Second Defendant.

KENIAPISIA; PJ:

RULING ON AN APPLICATION TO REMOVE A DECEASED PARTY

Introduction

1. By application filed 19/4/17, claimant applied to remove, the second named defendant and to replace him with three new persons namely Onyx Oina Suibaea; Ian Sura’a Suibaea and Rodney Sura’a Suibaea. Second named defendant is deceased and should be replaced by the above named three persons who are the wife and sons of the 2^nd defendant, respectively.
   
2. First and Second defendants through Counsels do not oppose joining the above named three persons as defendant parties. However they oppose the removal of the deceased from being a party to this case.
   
3. Court is of the view that the above named three persons should be made parties in this proceeding. This proceeding will definitely affect them because they currently reside on the disputed property, claiming through their deceased husband/father. The application to join them is accordingly granted.
   

Deceased to remain a party until a personal representative is appointed

4. The second named defendant should still remain a party, under the provisions of Rule 3.26 (d) and (e), until a personal representative of the second named deceased defendant, can be made a party, once an administrator is appointed to administer the “estate” of the deceased. Rule 3.26 (d) says that “If the claimant knows the person is dead, the claim must name the “estate” of (person’s name), deceased” read with Rule 3.26 (e) “...after a personal representative is appointed, all documents in the proceedings must name the personal representative as the defendant.”
   

Definition of “Estate” under two Acts of Parliament apply

5. Reference must be made to the definition of “estate” used under Rule 3.26 (d) as read with Rule 3.26 (e), whether the meaning under the Wills and Probate Act (Cap 33) or the Lands and Titles Act (Cap 133), should apply. Court is of the considered view that definitions under both statutes equally apply to the facts and current status quo of this case. So the second named deceased party should still remain, plus the addition of new names/party names, as defendants.
   
6. The definition of estate under the former Act includes, other properties of “what manner or kind whatsoever”. And also included “estate” as defined under the Lands and Titles Act (Cap 133). Under the latter Act, “estate” also means “interests” in land or “interests in land means estates”. Estates in land includes easements and adverse possession, as claimed by the second defendant in his defence, at paragraph 4, to the extent, that those rights are obtainable and can be derived from the Lands and Titles Act (Cap 133).
   

Conclusion and Orders

7. Accordingly the orders of the Court are:-
   
   • 7.1 Application to join new parties as defendants succeeds.
     
   • 7.2 Application to remove the second named defendant fails.
     
   • 7.3 All consequential amendment to pleadings are to be made.
     
   • 7.4 No order on costs.
     

THE COURT

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JOHN A KENIAPISIA
PUISNE JUDGE