HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 289 of 2008

ATTORNEY GENERAL

V

MICHAEL RAMO

Faukona, J.

Date of Hearing: 9th October 2008
Date of Ruling: 17th October 2008

John Muria (Junior) for Claimant
Donald Marahare for Defendant

RULING

Faukona, J.

This is an application for Summary Judgment pursuant to Rule 9.57 of Solomon Islands Court (Civil Procedure) Rules 2007.

On 3rd September, 2008 a copy of Statement of Case was served on the Defendant at his residence, at the National Referral Hospital compound. On 11th September, Mr Marahare of Xplain Lawyers filed a response and acknowledged that a defence will be filed within 28 days of service. At the time of hearing this application, no defence has yet been filed.

On 12th September John Muria (Jnr) filed an application for Summary Judgment believing that the Defendant does not have any real prospect of defending the Claimant’s claim.

Mr Muria (Jnr) rely on the sworn statement of Dr. George Malefoasi filed on 12/9/08. Mr Marahare rely on the sworn statement of the Defendant filed on 25th September 2008 in response to the Claimant’s application for Summary Judgment.

The orders sought are:-

1.	Possession of Quarter 153.

2.	Order the Defendant, his servants, agents, invitees, licensees or others occupying the property, to vacate the property and remove their chattels from the same.

3.	An order that Defendant, his servants, agents, invitees, licensees or others be permanently restrained from entering the property upon vacating the same.

4.	Order that Sheriff enter and deliver vacant possession to the Claimant.

5.	Damages.

6.	Exemplary and/or Aggravated damages.

7.	Costs.

Background History

Between October 1987 – June 2003, the Defendant was employed by the Government as Medical Officer. As part of Defendant’s entitlement he was allocated Quarter 153 situated at the National Referral Hospital compound. Upon cessation of the Defendant’s employment in September 2002, the Defendant was asked to vacate the property to allow another medical officer to move in. The Defendant has since failed to vacate the property. Due to Defendant’s refusal to vacate the property, various notices to vacate were served on him on various dates. Despite those notices the Defendant has failed, neglect and/or refused to vacate the property he currently occupies.

As a result of such default, the Claimant has been unable to use or make available to use the property. As a consequence the Claimant has suffered loss and damages and has incurred expenses and inconvenience including the need to find and pay for alternative accommodation.

Much of the facts were not disputed, even the claim for damages, there was no mention of in the Sworn Statement by the Defendant, neither submission by Mr Marahare encompass it. Impliedly, it would appear that the Defendant has conceded to, or has no defence related to it.

However, the Defendant admitted living in the Quarter 153 after his employment ceased on September 2002. His reasons are:-

(1)	That the Government through Ministry of Infrastructure owed him $206,844.00.

(2)	Few qualified medical practitioners in the field of Anaesthetic, and the anticipated reinstatement. So far he has not received anything as reply from the Ministry of Health and Medical Services.

Mr Marahare also submitted that the Defendant’s agreement with Ministry of Infrastructure and Development is a long term one if procedural it can be enforced. It is an issue which contain valuable defence, which can be considered on trial. Also submitted that the Defendant rely on lieu and also the fact that the Claimant’s claim is time barred.

Mr Muria (Jnr) submitted that the Defendant cannot rely on lien he refers to S. 21(1) of the Crown Proceedings Act (Cap.8) ("the Crown Act") and the case of Djokovic –v- Attorney General (unrep.) HC59 Civil Cases No. 19 and 39 of 2008. In relation to the time limitation Muria (Jnr) refers to S.9 of the Limitation Act.

Lien

S.28 (1) of the Crown Proceedings Act (Cap.8) states –

"Nothing in this Act shall authorise proceedings in lien in respect of any claim against the Crown, or the arrest, detention or sale of vessel; aircraft, cargo or other property belonging to the Crown or give to any person any lien on any such vessel, aircraft, cargo or other property."

Property refer to above section can be defined in the Interpretation or General Provisions Act (Cap.85), section 16 to include land and every description of estate, or incident to property.

The Defendant in this case assumed that because the Ministry of Infrastructure and Development has owed him $206,844.00, he has the legal right to keep possession of the Government Quarter 153 until his debt is paid. That is totally incorrect. S.28 (1) above expressly stated that the Act does not authorise or give any person any lien. It may be done under a contract or express contract. In this case there was nothing, and I doubt whether a lien will arise by implication. The case of Djokovic –v- Attorney-General (above) Goldsbrough J, held:

"Nothing that is provided in the Crown Proceedings Act (Cap.8) gives to any person any lien or any property of the Crown. It may well be that the Crown can expressly contract to give a lien, but absent that, I doubt whether a lien will arise by implication."

Is it a contractual lien?

From the above case it is apparently clear that the Defendant was not authorised or qualified under any contract or expressly contract to take possession of the property, until his debt is paid. That has never been expressed or implied in the contract with Ministry of Infrastructure and Development. His long term contract for hire of his vehicle by Ministry of Infrastructure and Development does not in any way connect to the property the Defendant is currently occupying .If the Ministry of Infrastructure fail to honour their agreement then the defendant has the right to sue to enforce it. But not to hold Government property at ransom where he is not authorised to do so.

Is the retainer of the house exercised as lien?

Retaining of the house is not performed as a lien. Only the holder of the lien is entitled to retain the property [the house]. The authority of lien does not extend to continue used as one’s own. See Djokovic case. The court heard that the house was allocated to the Defendant as part of his term of contract. That contract had ceased, therefore it is not retained under lien. By continuing occupying the house would render him liable for that usage beyond the right of the retainer if he ever had that right. 

Limitation

Section 9 of the Limitation Act clearly stated that no action shall be brought nor arbitration shall be commenced by the Crown or a public authority to recover any land after the expiration of thirty years. It is agreed that the Defendant ceased employment with the Government as of September 2002. That is when the cause of action accrued. From 2002 and until now it is six years since the cause of action accrued. It is well within thirty years. The Crown is not barred by virtue of Limitation Act to bring this case to Court. In fact the cause of action is well and truly alive and well within time.

Having said all that, I doubt that the Defendant has any real prospect of defending the Claimant’s claim. Therefore summary judgment is entered against the Defendant for the following orders:-

1.	Possession of Quarter 153, National Referral Hospital compound, Honiara.

2.	That the Defendant, his servants, agents, invitees, licensees or others currently occupying the property under the Defendant’s authority, upon notice from Claimant, vacate the property and remove their chattels from the same.

3.	That the Defendant, his servants, agents, invitees, licensees or others currently occupying the property under the Defendant’s authority, be permanently restrained from entering the property upon vacating the same.

4.	Order that the Sheriff enter and deliver vacant possession to the Claimant.

5.	Damages.

6.	Exemplary and/or aggravated damages.

7.	Costs be paid to the Claimants.

8.	That Registrar of High court to set a date of hearing to assess damages as in (5) and (6) above.

THE COURT