Kuo Fung Chi v Guo Feng Li [2023] SBHC 177; HCSI-CC 177 of 2023 (29 November 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Kuo Fung Chi v Guo Feng Li
Citation:
Date of decision:	29 November 2023
Parties:	Kuo Fung Chi v Emily Guo Feng Li, Dodo Trading Limited, Attorney general
Date of hearing:	16 October 2023
Court file number(s):	177 of 2023
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Palmer; CJ
On appeal from:
Order:	1 Grant application to strike out the Claim on the grounds that it is an abuse of process of the court. 2 Grant costs in favour of the Defendants on indemnity basis.
Representation:	C Fakarii for the Applicant/ 1st and 2nd Defendants A.N Hou for the Respondent/ Claimant A Harara for the third Defendant
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rule 2007, r 9.75, r 9.54, r 9.55
Cases cited:	Talasasa v Paia [1980] SBHC 93, Robinson Kofana v Lucy Aute’e [1999] SBHC 92, Majoria v Jino [2007] SBCA 20

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 177 of 2023

BETWEEN

KUO FUNG CHI
Claimant

AND:

EMILY GUO FENG LI
First Defendant

AND:

DODO TRADING LIMITED
Second Defendant

AND:

ATTORNEY GENERAL
Third Defendant

Date of Hearing: 16 October 2023
Date of Ruling: 29 November 2023

Counsel:
C Fakarii for the Applicant/1^st and 2^nd Defendant
A. N Hou for the Respondent/Claimant
A Harara for the Third Defendant

Palmer; CJ

1. This is an application for strike out of claim filed on the 30^th June 2023 pursuant to Rule 9.75 of the Solomon Islands Court (Civil Procedure) Rules 2007 (“the Rules”) on the grounds that, the claim raises the same issues in an earlier case^[1], between the same parties and over the same land, and therefore the doctrine of issue estoppel applies to this case.

Strike out powers under Rule 9.75 of the Rules.

2. Rule 9.75 provides as follows:

Frivolous and vexatious proceedings

“9.75 If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
(a) the proceedings are frivolous or vexatious; or
(b) no reasonable cause of action is disclosed; or
(c) the proceedings are an abuse of the process of the court;

the court may, on the application of a party or on its own initiative, order that the proceedings be dismissed generally or in relation to that claim.”

3. The Court may strike out a claim in any of the circumstances raised under rule 9.75 of the Rules.

The Claim of the Claimant.

4. The claim of the Claimant was filed on 24^th April 2023 and seeks a number of orders as follows:
   • (i) A declaration of double allocation having been made by the Commissioner of
   • (ii) Lands (“COL”) over the fixed-term estate in parcel number 191-031-84 (“PN 84”) first to the Claimant on 6^th March 2017 and subsequently in favour of the 2^nd Defendant on 4^th August 2017.
   • (iii) A declaration of double registration by the Registrar of Titles (“ROT”) over the same fixed-term estate in favour of the Claimant on 11^th April 2017 and later in favour of the 2^nd Defendant on 7^th August 2017.
   • (iv) Consequential declaration that the registration of the 2^nd Defendant as owner over the same property was made by mistake and therefore null and void ab initio.
   • (v) Declaration of fraud on the part of the 2^nd Defendant as against the 1^st Defendant to acquire title over the said property for purposes of securing a loan.
   • (vi) An order for rectification to have the title rectified in favour of the claimant therewith.
   • (vii) An order to restrain the 1^st and 2^nd Defendants from disturbing the Claimant’s quiet and peaceful enjoyment of the property therewith.
   • (viii) Costs on indemnity basis; and
   • (ix) Any other orders that the Court may issue.
5. In essence the claim of the Claimant is for rectification of the land register in PN84 on the grounds of mistake and or fraud.

Particulars of mistake.

6. The first mistake alleged is in relation to the so-called actions of the Commissioner of Lands to execute two grant instruments on the 5^th November 2014 and 6^th March 2017, in respect of the Claimant and the Second Defendant respectively.
7. The second mistake alleged is in relation to the so-called double registrations committed by the Registrar of Titles over the same land on the 11^th April 2017 and 7^th August 2017 respectively.

Particulars of Fraud.

8. The particulars pleaded under the allegation of fraud were that the arrangements to have a loan secured over the property by the Second Defendant were deliberately concocted to have the Claimant’s title over the property transferred to the Second and First Defendant to the deprivation of the Claimant.

The Application to strike out.

9. The Application for a strike out by the Defendants under rule 9.75 of the Rules was based on the submission that the matters raised in this claim (cc 177 of 2023) had already been raised and dealt with in an earlier case^[2] and that therefore the Claimant in this case is estopped from re-litigating the same issues.
10. The application for strike out is supported by the sworn statement of Emily Guo Feng Li filed on 30 June 2023.

The civil case 307 of 2022.

11. The parties in that case are the same parties in this case, cc 177 of 2023. Dodo Trading Limited is the second defendant in cc 177 of 2023 and Kuo Fung Chi is the Claimant in this case.
12. The claim in cc 307/2022 is for eviction of the Defendant (Kuo Fung Chi) from the premises in the property in PN 84 by Dodo Trading Limited (the Second Defendant in this case).
13. Perhaps what has confused the issues in this case sadly is that the two parties Kuo Fung Chi and Emily Guo Feng Li (“Feng Li”) are two sisters and this case has arisen from a falling out between them. The Director of the company Dodo Trading Limited is also Feng Li.
14. It is important to note what the defence of the Defendant in cc 307/2022 was as set out in the Defendant’s Defence filed on 31^st August 2022.
15. In paragraph 4(i) of the Defence, she states pursuant to an agreement with her sister Feng Li, to assist her to obtain a loan from one of the commercial banks, that she agreed to have the title to her property PN 84 transferred to Feng Li.
16. Part of the agreement was to the effect that once the loan had been fully paid off, title to the property would be reverted back to her. As a consequence title to the said property was granted in favour of Dodo Trading Limited (company owned or controlled it seems by Feng Li).
17. It is not disputed that the title to Dodo Trading Limited (“DTL”) was registered on the 7^th August 2017.
18. It is also not in issue that the same grounds pleaded in the Claim in cc 177/2023 of mistake and fraud were also the same grounds pleaded in defence in cc 307/2022.

Discussion and Decision.

1. It is clear on the issues raised in cc 307 of 2022 and cc 177 of 2023 that they are essentially the same and therefore the doctrine of res judicata would normally apply to such a case.
2. The doctrine of res judicata has been set out in detail in earlier cases, Talasasa v. Paia^[3], Robinson Kofana v. Lucy Aute’e and Anor^[4], and Majoria v. Jino^[5]. These cases have set out the essential elements governing the principle of res judicata, which can be summarized as follows:
   • (i) An earlier case in which the cause of action or point in dispute was really the same;
   • (ii) A final determination by a court of that cause of action or point on its merits; and
   • (iii) The raising of the same cause of action or the same point which has been distinctly put in issue by a party who has had the action or point solemnly and with certainty decided against him/her.
3. Once those three elements have been established, issue estoppel would normally apply to prohibit any further proceedings being undertaken.
4. In regards to this case, I am satisfied the issues raised in cc 307/ 2022 are exactly the same as the issues in this claim. The only difference is that the determination in cc 307/2022 is not a final determination on the merits but a judgment obtained in default of failure to file a defence in time.
5. In any event, in terms of the application to strike out is concerned, I am satisfied, this application is an abuse of the process of the court and therefore should be struck out.
6. It is duplicitous and a waste of the court’s time and efforts. The proper course of action to take in regards to the decision of the court in cc 307 of 2022 is set out in Rules 9.54 and 9.55 of the Rules, which provides:
   • “9.54 The court may set aside the default judgment if it is satisfied that:
   • (a) the defendant has shown reasonable cause for the delay in defending the claim; and
   • (b) the defendant has a meritorious defence, either about his or her liability for the claim or about the amount of the claim; and
   • (c) there is no substantial prejudice to another party in setting aside the judgment that could not be rectified by a costs order.
   • 9.55 At the hearing of the application, the court may:
   • (a) give directions about the filing of the defence and other statements of the case; and
   • (b) make an order about the payment of the costs incurred to date; and
   • (c) consider whether an order for security for costs should be made; and
   • (d) make any other order necessary for the proper progress of the proceeding.”
7. It is important to note that the ruling of the Court dated 27^th March 2023 granting default judgment in favour of the Claimant in cc 307/2022 is not a final judgment on the merits of the case. Rather, it is a judgment arising from an application for default judgment for failure to file a defence in time.
8. The application for strike out should be granted with costs. On the question of costs, I am satisfied it should be on indemnity basis.

Orders of the Court:

1. Grant application to strike out the Claim on the grounds that it is an abuse of process of the court.
2. Grant costs in favour of the Defendants on indemnity basis.

Sir Albert R. Palmer CBE
The Court.

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^[1] CC 307 of 2022
^[2] Dodo Trading Limited v. Kuo Fung Chi cc 307 of 2022.
^[3] [1980] SBHC 93 (13 October 1980)
^[4] [1999] SBHC 92; HCSI-LAC 1 of 1998 (10 September 1999)
^[5] [2007] SBCA 20; COASI-CAC 36/2006 (1^st November 2007)