Hona v Attorney General [2019] SBHC 54; HCSI-CC 444 of 2014 (27 March 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Hona v Attorney General
Citation:
Date of decision:	27 March 2019
Parties:	John Hona, Plinty Vigulu, Jamesley Halo and Hapi Christmas v Attorney General, Chachabule Rebi Amoi, Fair Trade Rebi Amoi Fair Trade Company Limited, Chachabule Rebi Amoi AND Attorney General, John Hona, Plinty Vigulu, James Halo and Hapi Christmas, Pacific Ritetrade Limited, Fair Trade Company Limited, Fair Trade Company Limited AND John Hona, Plinty Vigulu, James Halo and Hapi Christmas, Attorney General
Date of hearing:	27 August 2018, 15 November 2016
Court file number(s):	CC 444 of 2014
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; PJ
On appeal from:
Order:	Application for leave to amend Counter-Claim and Cross-claim refused and be dismissed. Cost of this application is paid to the first Respondents by the Applicants including certification for overseas Queen’s Counsel.
Representation:	Mr. B Kaehuna for first and second Claimants (Applicants in Counter Claim and Cross-Claim) Mr. T Matthews QC with Mr. D Marahare for first Respondents in the Counter-Claim. Mr. S Banuve for second Defendant in the Cross-Claim
Catchwords:
Words and phrases:
Legislation cited:	Civil Procedure Rule
Cases cited:	White Industries (QL) PTY Ltd v Flours & Hart (A Firm) QG [198 of 1986]

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 444 of 2014

JOHN HONA, PLINTY VIGULU, JAMESLEY HALO AND HAPI CHRISTMAS
Claimant

V

ATTORNEY GENERAL
(Representing the Commissioner of Lands and the Registrar of Titles)
First Defendant

CHACHABULE REBI AMOI
Second Defendant

FAIR TRADE REBI AMOI
Third Defendant

Civil Case No. 398 of 2017

FAIR TRADE COMPANY LIMITED
First Claimant

CHACHABULE REBI AMOI
Second Defendant

V

ATTORNEY GENERAL
(Representing the Registrar of Titles)
First Defendant

ATTORNEY GENERAL
(Representing the Commissioner of Lands)
Second Defendant

ATTORNEY GENERAL
Third Defendant
(Representing the Commissioner of Forests)

Counter-Claim/Cross-Claim

FAIR TRADE COMPANY LIMITED
First Claimant on Counter –Claim

FAIR TRADE COMPANY LIMITED
Second Claimant on Counter-Claim

AND:

JOHN HONA, PLINTY VIGULU, JAMESLY HALO AND HAPI CHRISTMAS
First Defendants by Counter-Claim/Cross Claim

ATTORNEY GENERAL
(Representing the Commissioner of Lands and Registrar of Titles)

Date of Submission: 27 August 2018, 15 November 2016
Date of Ruling: 27 March 2019

Mr. B Kaehuna for first and second Claimants (Applicants in Counter Claim and Cross-Claim)
Mr. T Matthews QC with Mr. D Marahare for first Respondents in the Counter-Claim.
Mr. S Banuve for second Defendant in the Cross-Claim

RULING ON APPLICATION FOR LEAVE TO FILE AMENDED COUNTER-CLAIM AND CROSS CLAIM

Faukona, PJ: This application was filed by Fair Trade Co. Ltd and Mr. Amoi on 12^th July 2018 to seek leave to amend their statement of case contains in their Counter-claim and Cross-claim filed on 2^nd November 2015. A draft statement of case was provided to the Claimants, but was objected to.

Facts:

2. The Claimants in HCC 444 of 2014 formed themselves as a group around 2012 and began to take up issues with the government over (a) compensation from the government pursuant to the 1960 deed of agreement (b) return of PE 143-001-24 to them under the National Development Strategy 2010-2011 implementation.
3. On 14^th March 2013, the Claimants in CC 444/2014 received a letter of offer from the Commissioner of Lands, Mr Silver Dunge, with a premium of $83, 317.70.
4. Eight months later, on 5^th November 2013, the Claimants received another letter of offer from Acting Commissioner of Lands Mrs Nester Maelanga for $840,477.00 as premium. The Claimants protested as too expensive.
5. On 28^th February 2014 the Commissioner of Lands revoked the second offer of $840,477.00 on advice by the Attorney General.
6. On 15^th April 2014, the Claimants paid $83,317.70 premium in line with the initial offer made by Mr Silver Dunge on 14^th March 2013, and was accepted.
7. On 17^th April 2014, the Commissioner of Lands signed an agreement with Mr Amoi and Fair-trade Co. Ltd to transfer part of PN 143-001-24 and whole of 143-001-25 and give grant of profit over both.
8. On 1^st May 2014, the Commissioner of Lands transferred the FTE in parcel NO.143-001-24 and grant of profit over 143-001-24 and 143-001-25, to Mr Amoi which was registered on 5^th May 2015.
9. On 24^th July 2014, the Claimants in HCC 444 of 2014 signed the transfer instruments over PE in 143-001-24, and were registered as owners of PE 143-001-24 (first registration by the Claimants).
10. On 28^th August 2014 Commissioner of Lands Nester Maelanga instructed the Registrar of Titles to rectify PE 143-001-24 back to the Commissioner of Lands as she accused the Claimants of fraud, therefore the title was reverted back to the Commissioner of lands, and the PE eventually was registered in the Commissioner of Lands on 3^rd September 2014.
11. A claim in HCC 388 of 2014 was filed on 11^th November 2014 by the same Claimants as in HCC 444 of 2014 against the Commissioner of Lands. The Claimants among other orders sought an order for rectification of PE in 143-001-24. The HCC 388 of 2014 was concluded by a deed of settlement on 3^rd September 2015 and a consent order on 15^th September 2015.
12. On 22^nd December 2014 the Claimants filed this proceeding, the same Claimants in CC 388 of 2014. They also seek rectification of the title in PE 143-001-24.
13. The first Defendant filed its defense on 25^th February 2015. The second and the third Defendants filed their defense on 26^th February 2015. On 9^th March 2015, the Claimants filed reply to defenses by Attorney General and the second and third Defendants. On 4^th May the Claimants filed amended reply and defense to the counter-claim to Attorney General’s amended defense and counter-claim.
14. On 4^th September 2015, the Claimants and the first Defendant signed a Consent Order without the second and third Defendant’s knowledge.
15. On 2^nd November 2015, the second and third Defendants filed counter-claim against the Claimants and cross claim against the first Defendant.
16. On 26^th November 2015, the Claimants acknowledge receipt of the cross claim and counter-claim and filed conditioned appearance, and statement, and will file application to strike out the counter-claim.
17. On 29^th August 2016 the application to strike out was heard but was dismissed on 30^th September 2016. An appeal to the Court of Appeal against the order for dismissal was also dismissed on 30^th May 2017.
18. On 17^th June 2017, the Registrar of Titles cancelled the Grant of Profit to Mr Amoi. On 27^th July 2017 Mr Damilea from the Attorney General’s Office email the Commissioner of Lands and advised that the cancellation of Grant of Profit was unlawful.
19. On 29^th August, Mr Amoi filed Civil Case 398 of 2017, asking the Court to reinstate the Grant of Profit which was cancelled.
20. On 29^th August 2017, Mr Amoi and group commenced HCC 389 of 2017. On 22^nd February 2018, HCC 398 of 2017 was consolidated with HCC 444 of 2014.
21. On 12^th April 2018, the notice to amend Cross-claim and Counter-claim was served. Mr Upwe then requested time to take instructions. Eventually both cross and counter-claims were objected to, which then pave the way for this application.
22. With vast chronology background of these cases provided, it is my obligation to make some observations on passing.
23. The first observation concerns the two offers that were made to the Claimants between intervals of eight months. The first offer was in respect of a PE title, whilst the second one was in respect of a FTE title. One pertinent observation is that the second offer did not contain a paragraph revising the first over. Nor that the first offer was withdrawn or revoked. There was no evidence to implicate even in any other relevant document of this pertinent point.
24. It took the Claimants eleven (11) months before the premium in the original offer was paid, that was on 15^th April 2014. In a normal acceptable sense a contract was concluded. This led to the transfer of PE over 143-001-24, to the Claimants and was registered on 31^st July 2014.
25. Two days after the payment of the original offer was made, the Commissioner of Lands signed an agreement with Mr Amoi and Fairtrade for the transfer of part of FTE in PN 143-001-24, and whole of PN 143-001-25 and profit over both.
26. Also noted that after the Attorney General’s advice the second offer was revoked by a letter from the Commissioner on 28^th February 2014. And in respect of the first offer it was rectified by the Registrar of Titles and the PE in 143-001-24 was reverted back to the Commissioner of Lands. This was done followed the advice by the Commissioner of Land that her signature on the documents submitted was forged.
27. It is pertinent to note that immediately and months after the Claimants had paid the original offer on 15^th April 2014, the Commissioner of Lands was busying signing agreement with Mr Amoi and grant of profit for 50 years. This led to the FTE and grant of profit registered in the names of Mr Amoi on 5^th May 2014.
28. The question to pause was the Commissioner of Lands not aware that the original offer was paid by the Claimants and perhaps only knows when the PE over 143-001-24 was transferred and registered in the names of the Claimants on 31^st July 2014. That prompted her response on 28^th August 2014 that her signature was forged and hence requested for the title to be rectified. That is one of the issues to be heard at trial.
29. Related to that is another issue that the Commissioner of Lands office had allowed itself to engage administering of the applications or the desire of both interested parties almost concurrently. Technically that could be so, because the Claimants were interested in PE over the land and the second and third Defendants were interested in the FTE and grant of profit.
30. What emerges apparently was that the Registrar of Titles cancelled Mr Amoi’s grant of profit on 17^th July 2017, after a show cause letter dated 14^th June 2017 was failed. Somehow the grant of profit was registered in favour of Reterade Pacific Limited. Mr Amoi then filed HCC 398 of 2017 against the Attorney who represent the Registrar of Titles, the Commissioner of Lands and Commissioner of Forest, including the claimants in HCC 444 of 2014 and Reterade Pacific Limited.
31. Two important reliefs sought by the applicants among others, one is to cancel the grant of profit enjoyed by the Claimants and order the first Defendant restore the profit to the Claimants.
32. In HCC 444 of 2014, the major relief sought by the Claimants is rectification of the PE title in their favor.
33. The purpose for application for leave to amend the statement of case in the counter-claim and the cross-claim is because there were fundamental changes to the circumstances of this case. That I noted to be so.
34. The original counter claim and cross claim filed with the defense was tested in an application to strike out. That application was dismissed even by the Court of Appeal. Notwithstanding the serious allegation of fraud and right of the second and third Defendants as a party, the Claimants and the first Defendant (AG) entered into a consent order. That issue becomes part and partial of the application to strike out. The finality of the consent orders was to rectify the PE title in PN-143-001-24 which will facilitate re-registration in the names of the Claimants.
35. Obviously, that will extraneously undermine the rights of the second and third Defendants without option to contest the fraud they alleged. Thus, had prejudiced them as parties chosen to be named by the Claimants.^[1] In any event my ruling in the application to strike out upheld two matters, one that the consent orders agreed and endorsed was contrary to the evidence gathered to support the first Defendant’s case. Secondly the application to strike out was dismissed whilst the counter claim and the cross claim remain intact.
36. It is a trite law that amendment to pleadings can be made at any stage of the proceeding, including at trail or after trial, so long as the requirements of Civil Procedure Rules are met in the interest of justice and fairness. Notwithstanding opposite arguments coming from Counsels. However, both acknowledge the applicable law is as stipulated by the rules 5.34 and 5.36. Rule 5.34 sets out grounds upon which a statement may be amended and R5.36 grants discretion upon the Court in deciding whether to allow an amendment. One consideration is in regards to whether the Respondents would be prejudiced in a way that cannot be remedied by costs, extending time for anything to be done or adjourn the proceedings.
37. The Counsel for the Applicants expresses emphasis premises on this Court ruling that pointed out some defects in the Applicants cross-claim and counter-claim, and the Attorney General’s change of position. One particular position is that the Applicants did not seek rectification in their own favor but in favor of the Commissioner of Lands. On that basis the Applicants have no standing which the Court had made its ruling on.
38. Due to change of circumstances the Applicants’ position is to seek to support the Attorney General, preserve its agreement with the AG, and to transfer PN-143-001-24 (hence seek rectification in favor of Commissioner of Lands) and Commissioner of Lands to comply with the agreement to transfer, and then protect its registered grant of profit which was cancelled during the currency of this proceeding without consultation with the Applicants.
39. The Counsel also submits that this application is not an application to challenge the pleadings in the original claim, nor add new material facts or allegations. But consistently plead fraud from the beginning.
40. The Respondents argue that the propose of amendment will not serve R5.34 but will cause the issues in dispute be redefined, hence, cause unjust and unfair results. And the Respondents then become beneficiaries of the alleged fraud.
41. On those submissions I have the privilege to peruse the draft amendment and distinguish from the original counter-claim and cross-claim.
42. The first thing I noted from the outset of the draft and the original counter-claim and cross-claim is that the format and features of the two documentations is by far containing huge and mass differences. Originally there were no reliefs in the original counter-claim and cross-claim but there were ten (10) reliefs in the draft.
43. The second point noted in the draft is in respect to the act of fraud. The Applicants and the Attorney General in their counter-claim share the same notion, that the first Respondent’s counter-offer was subsequently terminated.
44. It ought to be noted that it was the second offer of $840,477.00 which was revoked by Mrs Maelanga’s letter dated 28^th April 20114 and not the first one. It was after the first Respondents were registered as owners of the PE in 143-001-24, that Mrs Maelanga wrote to the Registrar of Titles on 28^th August 2014 instructing the Registrar and accusing the first Respondents of fraud that she did not signed the documents. Hence, the title was transferred back to the Commissioner of Lands on 3^rd September 2014.
45. It would appear the whole entire facts about the two Offers were confused and in a mess which one was reverted back to the Commissioner of Lands.
46. And then comes the issue of the consent order which initially the Attorney General admitted fraud and yet entered into a consent judgment with the first Respondents which eventually had to accept defeat and allow rectification of PE title. This issue was never entrenched in the original counter-claim and cross-claim. I have touched on this issue in my ruling; however, the Applicants sought relief to set aside and wish to litigate at full trial.
47. By way of particularization of fraud, I noted there is no difference and should be accepted as not new.
48. In regards to cross claim against the first Respondents I find there is little difference and can be accepted as minor, in fact it is shorter than the original one and the major issue covered by both claims is the consent orders.
49. I acknowledge the amendment will redefine the issues. However, if am right in my view, in regards to the two offers, and their standings, then I do not think will pause any unjust and unfair result to anyone.
50. Secondly, much had been said about the consent orders in my ruling. In paragraph 15 reflected my view that the end result appear fizzy which any proper assessment could suggest a probable collusion to defeat the cause of action against the second and the third Defendants. Any order could have been made in that instance but it was the first Respondents application and the court must go by the reliefs sought.
51. The Consent orders in fact had caused complexity to these proceedings. But let no one at burnt heart because I have full knowledge of the motive and I had indicated in my ruling on 30^th September 2016.
52. The only other issue left concerns the grant of profit which eventually was granted to someone else against the existence of the caveat.
53. Indeed those issues had been covered by the original counter-claim and cross-claim.
54. If the parties could note the language expressed by the two offers, the subject concern would not prompt any confusion if am right. The law of contract will not accept assumption and ambiguity. One form of document must be formally done away before the next take precedent. There must be clear implication of the review that the former was reviewed, withdrawn or revoked and the current should stand.
55. It is not true to assert, even if the claim is changed and the Applicant will not advance facts which have already being pleaded. What has changed is the manner in which the relief was sought. If no new facts are pleaded then there is no need for an amendment. However, if the reliefs are changed, with additional or otherwise, then pleadings have to be altered. The familiar notion is that the statement of case is formulated to support the reliefs sought. There must be evidence by way of sworn statement to support the statement.

Prejudice:

56. I noted the submissions by the Counsel for the Applicants have always been maintained. That of course has to be accepted on face value. But where the amendment is not for clarifying of the issues, but making serious allegation and not particularized, then it will widen the scope of disclosures. In the circumstance will prejudice the first Respondents for certain.
57. Such of Course will incur extra costs given the fact that the first Respondents has engaged overseas Counsel and one of the named parties Mr Hapi Christmas had died. Not only that, but to respond to the amended claims required instructions from the first Respondents. Possibly one or two have to travel to Honiara and that undoubtedly incur extra costs and further delay as well. In my humble view those costs cannot be remedied by award of costs now.

Delay

58. From 2014 until now without finalization is delay. Obviously the delay was occasioned by many facts. One major one was the application to strike out and appeal to the Court of Appeal against that ruling. It took eight (8) months from 30^th September 2016 to finally complete the application to strike out on 30^th May 2017.
59. Other delays can be identified as delay in the process itself. All the defenses were filed in response to the counter-claim and cross-claim. The first Respondent/Claimants had to file replies. Those activities need time, in particular where the parties are from Marovo in the Western Province.
60. Sadly someone pointed out that part of the delay was caused by the Court. Unfortunately that was a wrong assertion. The last date of hearing was on 29^th August 2016 and the judgment was given on 30^th September 2016 and not May 2017. Is one month before delivering a judgment delay? I don’t think so. Another point of delay was because of the first Respondent change of Solicitors that is part of the court process, which the first Respondents are responsible for.

Pleadings

61. I accepted pleadings were closed 2 years and 11 months ago on 14^th May 2015 until this application was filed on 12^th April 2018. Despite that, the Applicants still persist that the pleadings are yet to be closed. May be they expected the first Respondents to consent to amendment initially and directions could speed up the process. Unfortunately that was not the case, first Respondent did object to the amendment which now pave the way for the application for leave which this court now deals with.
62. In conclusion, upon perusal of the draft amended counter-claim and cross-claim, there is no difference from the original counter-claim and cross-claim in regards to particularization of fraud or mistake, and knowledge of fraud and mistake. As I have mentioned earlier the big difference is in regards to the reliefs sought and a further outlook in the new approach to the consent orders and the grant of profit which was given to someone else.
63. If the majority of reliefs sought in the amendment are unchangeable, and the approach in the two areas stated in paragraph 63 above will have prejudicial effect on the first Respondents where time is needed and cost remedy, then the proper approach is to refuse to grant leave. And I must refuse to grant leave.

Orders

(1) Application for leave to amend Counter-Claim and Cross-claim refused and be dismissed.
(2) Cost of this application is paid to the first Respondents by the Applicants including certification for overseas Queen’s Counsel.

The Court.
JUSTICE R FAUKONA
PUISNE JUDGE.

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^[1] White Industries (QL) PTY Ltd v Flours & Hart (A Firm) QG [198 of 1986]