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Vigulu v Joseph [2017] SBHC 84; HCSI-CC 469 of 2015 (26 May 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 469 of 2015

BETWEEN: GREY VIGULU - Claimant

AND: ZAMA JOSEPH AND FAMILY - Defendants


Date of Hearing: 15^th May 2017
Date of Judgment: 26^th May 2017

Mr Hapa for Claimant
Michael Pitakaka Law Chambers for Defendant – N/A

RULING

Maina PJ:

Introduction

The Claimant applies for summary judgment pursuant to rule 9.75 of the Court Rules 2007. For the purpose or in support of the application the Claimant relies on the claim filed September 11, 2015 and the sworn statement of Vaeno Vigulu on March 8, 2017.

The Claimant alleges or believes that Defendant’s defence filed on February 15, 2016 discloses no reasonable cause of action and or constitutes an abuse of process. And the Defence does not have any real prospect of defending the claim and succeeding in their defence.

Brief Background

The Claimant filed a claim on September 11, 2015 seeking judgment for possession of Fixed term estate in Parcel No. 098-007-92, permanent injunction restraining the Defendant their relatives and/or agent and order of eviction of them on the land.

With the defence filed on February 15, 2016 the Defendant says that:

1. Estate in Parcel No. 098-007-92 is part of Lot 116 and is owned by his Gasu clan of Leanaboko tribe.
   
2. The Kolombangara Forest Products Limited (KFPL) has no right to register and sell the estate in Parcel No. 098-007-92 which is part of their Lot 116 without their prior knowledge and consent.
   
3. Defendant admitted receiving letters to vacate the property but deny that they wrongly occupied the property.
   
4. Defendants say that the Claimant is not entitled of the reliefs sought for him in his claim.
   

Beside the defence there is no other pleading documents or sworn statements filed by the Defendant.

The Law

Rule 9.75 of the Court Rules 2007 states:

“The Claimant may apply to the court for a summary judgment where the Defendant has filed a response or a defence but the Claimant believes that the Defendant does not have any real prospect of defending the Claimant’s claim”.

This application relates to a question of law and the court is required to only confine the consideration to the pleadings now before the court and not the evidence.

Issue

Whether the pleading in the Defendant’s Defence discloses no reasonable cause of action and or constitutes an abuse of process; hence the Defence does not have any real prospect of defending the claim and succeeding in their defence.

The Court

His Lordship AR Palmer PJ (as he was then) in the case of John Fera v Henry Ologa and LR Enterprises and others HC Civil Case No. 268 of 2003 at the last page 2 provided guidance in a similar case to strike out a claim when he commented:

“The pleadings should be struck out only in plain and obvious cases...the powers of the court to strike out should be exercised only where the case is beyond doubt and that it is satisfied there is no reasonable cause of action....., If the Statement of Claim discloses some cause of action, or raise some question fit to be decided by the court, the mere fact it is weak, and not likely to succeed, is no ground for striking out......But even if the pleadings could be struck out as disclosing no reasonable cause of action, where the court is satisfied that some material averment has been omitted, it will not dismiss the action but give leave to the Plaintiff to amend. On the other hand, if the court is satisfied that no amendment will cure the effect it will dismiss the action......”

In the simple term the requirement for striking out is only if the court is satisfied there is no reasonable cause of action. And I would say the similar requirement is applicable in the consideration with summary judgment on the grounds of no reasonable cause of action.

Defence of Mistake or Fraud

The Defendant’s Defence is base on two arguments or grounds when he denied the Claimant’s Claim.

This is clearly in the sworn statements in the Defences 1 and 2, filed on February 15, 2016 that states:

“1 Paragraph 1 is denied. The Defendant say that the estate in Parcel No. 098-007-92 is part of Lot 116 and is owned by his Gasu clan of Leanaboko tribe.

2. Paragraph 2 is denied. The Defendant say that Kolombangara Forest Products Limited (KFPL) has no right to register and sell the estate in Parcel No. 098-007-92 which is part of their Lot 116 without their prior knowledge and consent”.
   

The Defendant’s defence as noted above has a defect and I would agree with Counsel Harper in his submission to the court that there is no qualification as to whether the matters complained of in the two grounds or both amount to ‘mistake’ or ‘fraud’ under Section 229 (i) of the Lands and Titles Act (Cap 133) (the Act). The mistake or Fraud is interwoven with and for the purpose of the relief of rectification under Section 229 (i) of the Act the defence need to particularise it. But it is not so with Defendant’s defence.

The absence or lack of clarity is a fatal defect in the defence or the case with the pleading documents.

Disclose no reasonable cause of action.

Defendant’s defence on the alleged mistake or fraud disclose no reasonable cause of action as it fails to provide sufficient particulars although pleaded in the defence, no particulars of mistake or fraud were stated in the pleading documents. For such the Defendants are to plead or state by particulars the mistake or fraud. This requirement was also emphasised by Faukona PJ in the case of John Alai v Paul Kakai HCSI, CC No. 8 of 2006.

‘Mistake’ or ‘Fraud’ is interwoven with the relief of rectification under Section 229 (1) of the Act. On that basis the Defendant must state or seek rectification but in this case he did not do so and that raises a serious matter to the court i.e. the defence is incomplete.

This case relates to a registered land Parcel No. 098-007-92 and any claim of mistake or fraud as seems to be alleged in the Defendant’s Defence need to link with Claimant’s knowledge at the time of registration for the requirement of the Section 229 (2) of the Act. It is on part of the Defendant to show in their defence particulars of the Claimant’s knowledge of the mistake he is alleging. Defendant has not done so.

The Defendants from the essence of the defence is to rely on the defence of mistake and fraud so they must in their pleading link the mistake to the time when the Claimant obtained registration of the fixed term estate in Parcel No. 098-007-92. On that, the date of the grant of fixed term estate to the Claimant was September 12, 2014. Such had not been pleaded in the Defendant’s Defence.

The Defendant’s Defence fail to state the qualification as to the matters complained of the grounds to amount to mistake or fraud under the Lands and Titles Act. There is no sufficient particulars stating the mistakes or fraud and no link of the mistake of time when the Claimant obtained the fixed term estate in Parcel No. 098-007-92.

There is nothing for the Defendant than trespass on the Claimant’s fixed term estate in Parcel No. 098-007-92. The occupation by Defendant is confirmed in the Defence paragraphs 3 and 4 of the above.

I am satisfy that the Defendant’s Defence filed on February 15, 2016 disclose no reasonable cause of action and/or constitute an abuse of process.

ORDERS

1. Defendant’s Defence filed on February 15, 2016 disclose no reasonable cause of action and/or constitute an abuse of process and therefore the defence is dismissed.
   
2. Judgment is entered against the Defendant in the terms outlined in the Claimant’s claim filed on September 11, 2015.
   
3. Cost is awarded to the Claimant.
   

THE COURT

......................................................
Justice Leonard R Maina
Puisne Judge