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Malefo v Malefo [2021] SBCA 21; SICOA-CAC 35 of 2017 (30 September 2021)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. This appeal concerns three parcels of land. Two of those parcels were bought during the subsistence of a marriage between Hudson Malefo (one of the Appellants) and his wife Margaret Malefo (one of the First Respondents). The other appellant is the son of Hudson from a former relationship and the other First Respondent is the son of Margaret. Chachabule Amoi (2^nd Respondent) bought one of the properties from the 1^st Respondents in exchange for the third property which he then owned. The 3^rd Respondent is the representative of the Commissioner of Lands and the Registrar of Titles.
2. The first complaint concerning Parcel No. 191-032-159 is straightforward. This parcel is adjacent to the plot on which the matrimonial home first occupied by Hudson and Margaret in 1996. They did not enter into a registered marriage until 2003 but there is some suggestion of a marriage in custom several years before that, and well before this purchase.
3. The Appellants assert that the plot ending -159 should have been registered in the name of Hudson alone and not, as it was, Hudson and Margaret. In evidence, though, is the registration paperwork showing that both signed the registration and that both subsequently sought assistance in the form of bank loans. There may be some suggestion that all the money to buy came from Hudson but that does not explain why they both signed the transfer documents, and both approached the bank for loans assistance for which they both became liable.
4. Parcel No. 191-041-320 is at Panatina and was bought sometime around 2008 and sold by the registered owner in 2014. The Appellants say, in the statement of case, that Hudson asked to buy that plot but somehow it was registered in the name of another person. In fact, that other person was the son of Margaret and one of the 1^st respondents but who bought the property under an assumed name of Hudrick Au’u. Contained in the evidence is both an explanation for the use of an assumed name and that the Commissioner of Lands or at least the staff member dealing with the sale and purchase was aware of the identity of the actual purchaser.
5. Parcel 191-032-81 was part of an exchange negotiated between the 2^nd Respondent and the 1^st Respondents when -320 was sold. Because of the assertion that -320 should have been registered in the name of the Appellants, it is sought to cancel that sale and purchase and put the 2^nd Respondent back on the register for -81. That would allow the register to be rectified to reflect the Appellants as owners of -320.
6. Before the High Court and the subject of this appeal were two applications to strike out proceedings under Rule 9.75 Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR). Rule 9.75 provides that: -

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.

7. There are other rules which facilitate ending proceedings early but 9.75 was chosen by both the 1^st and 3^rd Respondents. At the same time an application brought by the Appellants to amend their statement of claim was also heard, by consent of the parties.
8. The decision, the subject of this appeal, was given on 5 September 2017. There have been many sittings of this Court in the intervening period but the parties to this appeal have not been able or willing for the appeal to be heard before now. There was a stage at which the appeal was to be dismissed for want of prosecution, but the Appellants convinced this Court that the default should not be allowed to halt their appeal.
9. In the September 2017 decision the Appellants were unsuccessful in seeking their amendment and were equally unsuccessful in defending the applications to strike out. In addition, an order was made allowing the counter claim of the 1^st Respondents.
10. As part of this appeal book prepared and agreed by the parties there is no counter claim. There is a reference in the sworn statement of Margaret Malefo of the existence of such a counter claim so it may have been made but it should have been included in the Appeal Book. The Registrar of the High Court was asked to provide the counter claim from the High Court file. This seemed necessary to explain the various orders made by the trial judge after dismissing the original claim. There is no reference to the counter claim in the judgment and so the orders made therein are otherwise unexplained.
11. In considering an application to strike out a court is concerned to see whether a claimant can support the claim and statement of case with evidence. At that stage, the court is not concerned with assessing the quality of the evidence as between the parties but focusing on the evidence to be adduced by the claimant to see if, taken at its highest, the evidence in support establishes a claim. To complete that exercise, it is usual to begin with the sworn statement in support of the claim filed together with the claim or any sworn statement filed thereafter for the purposes of any hearing. The Court may receive evidence at the hearing of a Rule 9.75 application.
12. There clearly was a sworn statement from the claimant available to the trial judge, as he refers to it at paragraph 24 of his judgment. Regrettably, the same has not been included in the Appeal Book prepared and agreed between the parties to this appeal.
13. Turning to -159 the trial judge found after considering the available material that Hudson began the process himself with an application to purchase. He further found that the resultant offer and subsequent documentation was in joint names, Hudson, and Margaret. This finding is supported by both signatures on the transfer document and correspondence with loan institutions and subsequent charges entered into by both man and wife.
14. It is not surprising that the judge found as he did, and we find no reason to interfere with his findings in that regard.
15. The judge then went on to consider the purchase under an assumed name of – 320. The finding that he made was that this conduct did not amount to a fraud as suggested by the Appellants. Give the available material that was a finding open to him and we have no reason, again, to interfere with that finding.
16. That leads to –81 and given that we accept no fraud established in the purchase of -320 there can be no reason to interfere with -81.
17. As to the proposed amendment before the judge, we can see how, given the relief sought by the appellants, the amendment would not assist in further identifying the issues but would most probably have the effect of barring the Appellants in part of their claims. We fully understand and agree with the judge in determining that the amendment should not be permitted.
18. All the parties were present and legally represented at this hearing and, whilst there is no record in this Appeal Book of what was said on the counter claim, we have sought assistance from the High Court file and submissions made on that question. From that material we note that the parties were given the opportunity to speak to the counter claim. It was raised at first in the written submissions of the 1^st Respondents and thereafter any counsel could have taken the opportunity to response to the request that the counter claim be determined together with the strike out claims. Given the available material again we see no reason to support any interference with the trial judges’ findings as they were available to him on the material presented.
19. In the event the appeal is dismissed with costs of and incidental to the appeal awarded to the Respondents and to be paid by the Appellants such costs to be agreed or assessed. We note that the matter should now return to the High Court for the assessment of damages if that has not already taken place in the intervening period. Should that assessment take place, we would expect the High Court to investigate the question of whether the property was purchased with money coming from the 1^st Appellant over a number of years.

Goldsbrough (P)
Hansen (JA)
Member
Gavara-Nanu (JA)
Member