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Attorney General v Ning Huan Szetu [2025] SBHC 87; HCSI-CC 90 of 2024 (5 August 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 90 of 2024

BETWEEN:

ATTORNEY GENERAL
(Representing the Commissioner of Lands)
Claimant

AND:

NING HUAN SZETU
Defendant

BY WAY OF COUNTERCLAIM

AND:

NING HUAN SZETU
Counter Claimant

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Lands)
Counter Defendant

Date of Hearing: 4 June 2025
Date of Ruling: 5 August 2025

Ms P. Rofeta for the Claimant and Counter Defendant
Mr B Upwe for the Defendant and Counter Claimant

RULING

AULANGA, PJ:

1. This is a ruling on an application for summary judgment filed by the Claimant/Counter Defendant (Claimant) under Rules 9.57 and 9.58 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (hereinafter “the Civil Procedure Rules”).
2. The Claimant seeks an order for summary judgment against the Defendant/Counter Claimant (Defendant), in the terms set out in the claim filed on 6^th March 2024 for immediate possession of two plots of registered land in Fixed Term Estate Parcel Number: 191-014-147 (PN 147) and 191-014-197 (PN 197) situated at the Town ground area in Central Honiara. The Claimant also seeks other orders that the Defendant, his servants, agents, invitees, licensees but not limited to those taking possession through any subsidiary or associated company currently occupying those two parcels of land, to evict and be permanently restrained from entering the said properties; that the defence and the counterclaim of the Defendant do not raise any triable issues that require a full trial, or that they ought to be dismissed on the basis of no prospect of succeeding at the trial, and finally, for costs.
3. The Claimant relies on the sworn statements of the Commissioner of Lands, Mr. Alan James McNeil, filed in support of the application in seeking the orders sought for in the application. Likewise, the Defendant also relies on a sworn statement of Ning Huan Szetu and argues that the application should be refused as the matters raised in the application should be investigated at the trial.
4. The Defendant also filed a counterclaim for damages in the various amounts pleaded in paragraphs 12 to 14 of counterclaim for all the expenses incurred when he was a joint owner of PN 147. The counterclaim is only confined to damages regarding the development on PN 147 and not on PN 197.
5. The Claimant opposes this counterclaim on the basis that the claim herein is for eviction of the Defendant from PN 147 and PN 197 following the lawful resumption of the two plots of land, which the Defendant is barred from re-litigating this issue in a new proceeding involving the resumption of PN 147 due to his failure to set aside an existing Strike-Out order issued in a High Court Civil Case No. 348 of 2015 (HCSI CC 348 of 2015), a case involving the Defendant’s claim against the current Claimant’s resumption of PN 147. In the Claimant’s view, the counterclaim is one that does not have any prospect of succeeding and ought to be entirely dismissed.

Brief Facts of the Case

6. The Claimant represents the Commissioner of Lands by virtue of section 15 of the Crown Proceedings Act. The Defendant was a former co-owner of PN 197 with Willie Quan in 1997, and also co-owner with Willie Quan of PN 147 in 2004. These two plots of land are located at Town ground area in Central Honiara. On the map, they are located inside the fenced area, with boundary to the road on the left side of KuKute Street driveway to the YWCA School, commencing from the intersection at the main road. In other words, these two properties were located directly opposite the APTC building at the Town ground area.
7. By letter dated 30^th May 2012, former Commissioner of Lands, Mr. Silva Dunge, issued a notice to the Defendant and Willie Quan for resumption of PN 147 and PN 197. The purpose of the resumption was for public purpose, and that was, to build office buildings for the Ministry of Women, Youth, Children and Family Affairs (the MWYCFA). On 30^th July 2012, a notice of re-entry was issued to them by Mr. Silva Dunge. On 12^th September 2012, they were formally advised by letter from the Registrar General Office that the registration of the two properties was cancelled in light of the notices issued by the Commissioner of Lands for resumption and re-entry of the two properties.
8. The Defendant and Willie Quan refused to vacate the two properties and so on 22^nd May 2013, the MWYCFA advised them by letter of a charge imposed on them for the illegal occupation of the properties. On 12^th August 2013, the Defendant and Willie Quan were issued with an eviction notice by the Permanent Secretary of the Ministry of Lands, Housing and Survey (the MLHS) to vacate the properties. They refused to comply with the notice and continued to occupy the two plots of land.
9. Aggrieved with the resumption of the properties, on 24^th July 2015, the Defendant commenced a High Court proceeding in HCSI CC 348 of 2015 against the current Claimant regarding the validity of the resumption of PN 147. The Defendant in that claim also sought compensation for loss incurred by his business for the improvement of PN 147 if that claim was unsuccessful. That proceeding was somehow struck out for want of prosecution. It was reinstated by leave of Court in 2020 but was struck out again by the Court for the same ground of want of prosecution. Thereafter, the Defendant did not apply to have that order set aside or filed an appeal against that second strike out order. The status of the case remains unchanged when this present proceeding was filed and even at the time of the hearing of this application.
10. On 5^th October 2020, the Attorney General’s Chambers acted upon the instructions of the Commissioner of Lands and issued an eviction notice to Defendant and Willie Quan, requesting them to evict from the two properties with warning to commence legal proceeding against them if they failed to comply with the notice. This followed by another notice of eviction issued on 9^th November 2022 by the Attorney General’s Chambers against the Defendant and Willie Quan. Again, they failed to comply with the notices which resulted in the commencement of this proceeding.

Issues for Consideration

11. For this application, the key issues for the Court to determine are:
    1. Whether the Defendant’s defence and counterclaim disclose any real prospect of succeeding in a trial; and
    2. Whether the Claimant is entitled to the reliefs sought, namely eviction, possession of PN 147 and PN 197, and permanent restraining orders against the Defendant and concerned persons as sought in the claim.

Applicable Legal Principles

12. Rule 9.57 of the Civil Procedure Rules provides that a claimant may apply for summary judgment if the Defendant’s defence does not have a real prospect of success. Rule 9.62 CPR 2007 then requires the party opposing summary judgment, herein the Defendant, to file a response and evidence showing that the defence has merit and a real prospect of success. Both parties have filed all relevant documents for this proceeding and have duly complied with the above provisions.
13. In Natei v HHD Development Ltd [2023] SBCA 25, the Court of Appeal explained at paragraph 17:
    • “An application for summary judgment is premised on the submission that there is no triable or arguable issue that has been raised in the defence to go to trial. In other words, that the defendant does not have any real prospect of defending the claim.”
14. The Court then adopted the decision in Beti v Kama [2014] SBHC 13 where Apaniai J (as he then was) at paragraph 13 stated:
    • “13. The Rule enables the court to grant summary judgment at an interlocutory stage without the delay and expense of a full trial. However, there is authority to say that such procedure is to be used sparingly. In General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; [1964] 112 CLR 125 [1] at pages 128-129, Barwick, CJ, said:-
    • "The jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the court is satisfied that it has the requisite material and necessary assistance from the parties to reach a definite and certain conclusion."
15. If the Court is satisfied that the Defendant’s defence or part of it does not have any prospect of succeeding then the Court may grant summary judgment. Having referred to the above cases, the question is whether Defendant’s defence and counterclaim disclose any real prospect of succeeding in a trial.

Discussion and Analysis

16. I have looked at the Defendant’s defence and counterclaim filed on 15^th April 2024. They raised three main contentions. First, the resumption was unlawful since there was no interest shown by the MWYCFA for the resumption of the properties for its ministerial use. Second, is that since the resumption of the two properties was unlawful, that in itself renders the notices for the resumption to be invalid. Third, the issue of damages as a result of the loss suffered by the Defendant due to the purported improvements made on the land.
17. Having considered firstly the defence, it is my view that it does not constitute any valid defence to the claim, and one that does not have any prospect of succeeding at trial. I reached this decision based on the following reasons. First, is the fact that there was a lawful resumption of the two properties (PN 147 and PN 197) by the Commissioner of Lands for a public purpose. The public purpose is for the two plots of land to be used for the MWYCFA. These were evidenced by the notice for resumption dated 30^th May 2012, the notice of re-entry dated 30^th July 2012 and the cancellation of registration as confirmed by the Registrar General on the 12^th September 2012. The MWYCFA is a ministry of the Solomon Islands Government, a public office for the general public, and not a private legal entity. The resumption of the land process for the public purpose is an exclusive statutory right that is afforded and exercisable by the Commissioner of Lands, as the authority holding the land in perpetuity under the Land and Titles Acts (Cap. 133). I do not see the Defendant’s defence can stand the chance of succeeding at the trial against the Claimant’s exercise of statutory power herein. I concur with the Defendant’s contention that there is nothing in the Land and Titles Act and other relevant subsidiary legislation requiring the MWYCFA, as the receiving ministry for this purpose, must show its interest in the properties prior to the process for resumption. The Defendant did not successfully challenge this process at the first place and therefore, the resumption remains valid and undefeated.
18. Second, is the Defendant’s continued illegal occupation of the two properties despite the notices for eviction were issued to the Defendant after the resumption and cancellation of the name of the Defendant and Willie Quan from the two properties. The first notice was sent to the Defendant on 22^nd May 2013 by the MWYCFA regarding the charge to be imposed for his illegal occupation, the second on 12^th August 2013 by the MLHS for the Defendant to evict from the properties, the third on 5^th October 2020 and finally, the fourth on 9^th November 2022 respectively by the Attorney General for the Defendant to evict from the properties. The Defendant’s refusal to vacate the properties despite those multiple eviction notices in my view constitutes unlawful occupation. Those notices show the Defendant has no legal entitlement to remain on the land. Viewed in this context, I do not see any viable defence raised by the Defendant against his unlawful occupation of the properties.
19. Third is, the defence raised by the Defendant that the resumption of the two properties by the Claimant was unlawful must be barred on the principle of res judicata. The undisputed facts of this case show that the Defendant had previously challenged the resumption of PN 147 in HCSI CC 348 of 2015. That case was struck out twice for want of prosecution and remains inactive. The Defendant did not appeal or seek to set aside the second strike-out order (see: Aranga Estate, Re [2025] SBHC 70). This means, the reliefs sought in HCSI CC 348 of 2015 regarding the purported unlawful resumption of the two properties by the Commissioner of Lands were dismissed in that proceeding and cannot be relitigated in a separate proceeding. Accordingly, the Defendant is barred from re-litigating the same issue by way of defence and counterclaim.
20. The Defendant’s counterclaim relates solely to damages for the improvements made to PN 147 during the joint ownership. Unfortunately, this has been previously raised in his claim in HCSI CC 348 of 2015 which was already struck out for want of prosecution. Based on the same reasoning on the effect of the existing strike out order in HCSI CC 348 of 2015, the Defendant cannot raise it again in the counterclaim for this proceeding. The costs by way of damages sought by the Defendant are unwarranted and do not have any legal basis due to his failure to vacate from the two properties after they were reacquired by the Claimant. This relief sought by the Defendant could potentially constitute lien as well which is contrary to section 28 (1) of the Crown Proceedings Act. Further, the defence and the counterclaim does not effectively address PN 197 which is unfortunate. The Defendant has failed to establish any legal basis for relitigating the issue of compensation for PN 147 in this proceeding, particularly in light of the existing order in HCSI CC 348 of 2015 and together with the lawful resumption and cancellation of the title of PN 147 done lawfully under a statutory authority conferred upon the Claimant. Based on those reasons, the counterclaim has no real prospect of success and ought to be dismissed.

Conclusion

21. Based on the evidence presented and the legal principles, the defence and the counterclaim filed by the Defendant, it is my view that they do not have no real prospect of success, and no triable issues exist. The application for summary judgment is therefore granted with costs on a standard basis.

Orders of the Court

1. The Claimant’s application for summary judgment is granted.
2. Consequently, the Defendant’s defence and counterclaim are dismissed in their entirety.
3. The Claimant shall have immediate possession of the Fixed Term Estate Parcel Numbers 191-014-147 and 191-014-197.
4. The Defendant and all persons claiming through him, including servants, agents, invitees, licensees, and any associated or subsidiary companies, are hereby ordered to immediately vacate and be permanently restrained from entering or occupying Fixed Term Estate Parcel Numbers 191-014-147 and 191-014-197.
5. The Defendant shall immediately remove any properties stored or structures built on those two properties within 14 days, failure of which the Claimant shall take ownership of them forthwith.
6. Costs of the hearing shall be paid by the Defendant to the Claimant on a standard basis.

THE COURT
Hon. Justice Augustine S. Aulanga
PUISNE JUDGE