Maenu'u v Lamani [2018] SBHC 85; HCSI-CC 32 of 2013 (3 September 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Maenu’u(deceased) v Lamani
Citation:
Date of decision:	3 September 2018
Parties:	Paul Maenu’u(deceases), Haddyson Lekolo Maenu’u, others v Gabriel Ramo( deceased), Silas Lamani, David Kofela , Gabriel Kiliva, Norman Deve, Attorney Generalm Frank Daoga, Placid Sade
Date of hearing:	13 June 2018
Court file number(s):	32 of 2013
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Rex Faukona;PJ
On appeal from:
Order:	1.Application for Summary Judgment dismissed 2.Costs incidental to hearing of this application to be paid to the first and third Defendants by the claimant
Representation:	Mr. D. Marahare for the Claimant Mr G. Fa’atoa for the First and Third Defendants No Appearance for the Second Defendants No Appearance for the Third Party
Catchwords:
Words and phrases:
Legislation cited:	Civil Procedure Rule
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 32 of 2013

PAUL MAENU’U (DECEASED), HADDYSON LEKOLO MAENU’U AND OTHERS
Claimant

v

GABRIIEL RAMO (DECEASED), SILAS LAMANI, DAVID KOFELA, GABRIEL KILIVA & NORMAN DEVE
First Defendant

ATTORNEY GENERAL
(Representing the Commissioner of Land and the Registrar of Titles)
Second Defendant

FRANK DAOGA
(Representing the Lolo Tribe of Manaoba Islands, North Malaita)
Third Defendant

PLACID SADE
(Representing himself and his members of Ulufera and Ferata’a Tribes/Lines)
Third Party

Date of Hearing: 13 June 2018
Date of Ruling: 3 September 2018

Mr. D. Marahare for the Claimant
Mr G. Fa’atoa for the First and Third Defendants
No Appearance for the Second Defendants
No Appearance for the Third Party

RULING ON APPLICATION FOR SUMMARY JUDGMENT

Faukona, PJ: A claim for judicial review to quash the determination of the Acquisition Officer made on 28^th March 2011 was filed on 11^th February 2013.

2. The first Defendants filed their defence and counter claim on 8^th May 2013. On 10^th June 2013, the second, third and the fourth Defendants filed their defences.
3. On 18^th June 2013, an amended claim was filed by the Claimant. In the amended claim, relief one of the original claim was abandoned, a claim to quash the decision of the Acquisition Officer.
4. The first Defendants’ in response filed their amended defence and amended counter claim on 30^th October 2013.
5. Ever since the service of the amended claim, there was no amended defence filed by the second Defendant the Attorney-General. On 9^th November 2017, at the motion hearing, Ms Kisina for the Attorney-General, reminded the court that the Attorney-General has yet to file an amended defence.
6. On that occasion both Counsels Mr Marahare and Mr Fa’atoa, agreed that the Attorney-General will file an amended defence after the ruling in this application to summarily dismiss the first Defendant’s defence. In other words, the Counsels had consented that an application for summary judgment is viewed as regular to dismiss one set of Defendants defence, allowing others to remain intact and on foot. The problem not being visualised is the discretionary power of the court if in due exercise of it, actually dismissed the first Defendant’s defence.
7. The application for summary judgment, as expressly stated in the application, is premised on R9.57. R9.57 conferred authority upon a Claimant to apply for summary judgment, on a belief that the defendant does not have any real prospect of defending the claim.
8. On the material available (the defence), the Claimant has taken time to assess the defence filed by the first Defendants only. The conclusion they draw premises on the consent order executed by the parties on 11^th March 1999, which Mr Paul Maenu’u was a party, and that order is a legitimate order of this Court, affirmed by this Court’s ruling, as binding on the parties.
9. However, it does not end there. That is only one significant integral part of this case. The most important portion is enshrined in the first relief sought by the Claimants in the amended claim, which seeks rectification of perpetual estate title in PN: 135-005-1 (LR1098), the subject land of this litigation.
10. I could have dealt with the substance of the application in full by investigating whether the first Defendants have an arguable defence, not necessary they should show good defence^[1]. But for the specific reason that the Attorney-General which represent the second Defendant, a pivotal party in this case, had failed to file an amended defence. A suggestion which was agreed upon by Counsels that an amended defence be filed after this ruling is currently viewed as improper for the reason it will have an adverse effect to the whole entire case and will perhaps retar date the ongoing progress of the case.
11. If there was any constructive vision by the Defendants Counsels in order to defeat the application by utilising the situation, then I must refute that intention and allow the application be determined on its merit.
12. The merit of the application as I conceive is not so much on the traditional approach of considering whether the defence has shown an arguable case. Rather arise a technical perception which diverts the common consideration from the traditional requirements.
13. If I am to accept and allow, and subsequently dismissed the first Defendants defence, the party that remains on file is the Attorney General. The third party has not taken any active role in the case since inception. Will the Attorney-General usurp or taken over as being the owner of the title in order to defend the relief for rectification of the register.
14. Any relief that sought order for rectification of the register, the legal owner of the title must be present to defend any allegation of fraud or mistake, together with the Attorney-General who represent the Commissioner of Lands and the Registrar of titles. The Attorney-General by itself cannot adequately answer, or defend any allegation of fraud or mistake done by its clients and the registered owner of the title.
15. Those two parties must be jointly taking responsibilities to defend any allegation of fraud or mistake done in the registration of the title. One cannot and is insufficient to defend in full because any claim of fraud or mistake must require actions of two parties not just one. The parties are which the Attorney-General represented and the registered legal owner.
16. Returning back to the issue of a possible grant of the application. What would be the possible impact that is expected to unveil? It ought to be noted that any ruling whether by grant or refusal to an application of summary judgment, there is privilege available for an appeal to the Court of Appeal.
17. There is no provision that should a party aggrieved by the ruling is eligible to file an application to set aside. That process is not made available by the Rules.
18. If there is no appeal, the matter will progress forward at a faster pace. However, should there be an appeal it will further prolong the case unnecessarily.
19. Therefore, in considering the major issue before this Court, which is rectification of the register, the Claimants carry the onus to proof fraud or mistake committed at the time of registration? Fraud or mistake which is one element to proof on the balance has to be answered or defended by the legal title holder (the first and third Defendants) and the second Defendants jointly. There is no way they can be separated or be heard separately.
20. A big disadvantage will prevail if the Court of Appeal upholds the ruling by this Court. It would be difficult to deal with the Attorney-General alone where allegation of fraud or mistake is the major cause for rectification of the register.
21. Therefore, for convenience reasons, and for avoiding time wastage, it is considered prudent to dismiss the application at this stage. My perception is that the application was filed prematurely, which surely will lug behind in progressing the file from moving towards hearing date into the new future.

Orders:

Application for summary judgment dismissed.

(1) Costs incidental to hearing of this application be paid to the first and third Defendants by the Claimants.

THE COURT
................................
REX FAUKONA
PUISNE JUDGE

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^[1] General Steel Industry Inc V Commissioner of railways (Adopted by Apaniai J in the case of Brown V New World.