Gamali v Chin Foot Hap [2018] SBHC 35; HCSI-CC 493 of 2017 (16 March 2018)

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 493 of 2017

BETWEEN: THOMAS GAMALI - Claimant

AND: CHIN FOOT HAP - First Defendant

AND: FRED DOLA - Second Defendant

AND: ATTORNEY GENERAL - Third Defendant
(Representing the Commissioner of Lands)

Date of Hearing: 8^th February 2018.
Date of Ruling: 16^th March 2018.

Mr. D. Nimepo for the Claimant/Respondent.
Mr. A. Radclyffe for the First Defendant/Applicant.
Mrs. R. Soma for the Third Respondent.
Second Defendant Appearing in Person.

KENIAPISIA; PJ:

RULING ON AN APPLICATION TO STRIKE

1. By application filed 1/11/2017, first defendant applied to strike out the claim on two grounds: claim is statute barred and no reasonable cause of action is disclosed.
   

Statute barred

2. The cause of action did accrue in year 2010. By time of filing of claim in 2017, it is already 7 years. I accept as the starting point that the claimant’s claim is a cause of action that has 6 years to run on its limitation period. And so 6 years had lapsed in 2016. However having considered the explanations claimant gave in the statement saying he instructed Presley Watts and Presley Watts did not file his claim within time, court will condone the delay under Section 39 (1) (a) read with Section 39 (2) (a) of the Limitation Act (Cap 18).
   

No reasonable cause of Action

3. As against the 1^st and 2^nd defendants the pleadings do not particularise any fraud normal under the requirements of Section 229 (1) and (2) of the Lands and Titles Act (Cap 133) - LTA. Therefore it can be said that the claim is weak.
   
4. The mere fact that claim is weak is no ground for striking, where I can still find that issues fit for trial are disclosed in the statement of case and sworn statements. I do found as an issue why the Commissioner of Lands (“COL”) refused to allocate the disputed land to claimant, saying the area is needed for public space. And then later COL gave the same piece of land to the first defendant.
   
5. But whether this would be tantamount to fraud as a ground for rectification under Section 229 (1) (2) of LTA is a matter for proper investigation at trial.
   
6. Another issue for trial is whether claimant can lawfully claim for prescriptive rights. Another issue is the effect of CC 314 of 2015 on this claim.
   
7. According to Tikani if the statement of case disclosed issues fit for trial; matter must proceed to trial even though the case is weak.
   
8. Accordingly, Court orders that:
   

8.1. Application is refused with costs.

8.2. Leave to amend claim (if necessary).

8.3. Matter to come back for PTC after pleadings are closed.

THE COURT

JOHN A KENIAPISIA
PUISNE JUDGE