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Solomon Shell Products Company Ltd v Commissioner of Lands [2016] SBHC 203; HCSI-CC 315 of 2014 (23 November 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case No. 315 of 2014

BETWEEN: SOLOMON SHELL PRODUCTS COMPANY LIMITED - Claimant

AND: COMMISSIONER OF LANDS - 1^st Defendant
(Represented by the Attorney General)

AND: REGISTRAR OF TITLES - 2^nd Defendant
(Represented by the Attorney General)

AND: SHI WEI CHEN AND KING SAU PANG - 3^rd Defendant

Date of Hearing: 1^st November 2016.
Date of Ruling: 23^rd November 2016.

M. A. Radclyffe for the Claimant.
Mrs. F. Tagini for the 1^st and 2^nd Defendants.
Mr. M. Pitakaka for the 3^rd Defendant.

KENIAPISIA; PJ:

RULING ON APPLICATION FOR LEAVE TO FURTHER AMEND DEFENSE

Introduction

1. Pleadings have closed. Matter reached discovery stage for the claimant and third defendants. Except for first and second defendants, the other parties have already made list of documents by sworn statement (ss).
   
2. For the first and second defendants pleadings are yet to close. First and second defendants filed a defence, amended defence and are now applying to have their amended defence, further amended. Their application to further amend their amended defence was filed 9/6/2015. Application is supported by ss of Nelson Naoapu, filed the same date.
   
3. Claimant did not oppose application to further amend, but briefly made oral submissions in support. Third defendants opposed further amendment.

Application to further amend defence because of late discovery of new material facts

4. The prime relief sought in the application, is to seek leave of the Court to further amend first and second defendants’ amended defence filed 26/2/2015, on the ground of subsequent late discovery of relevant material facts.
   
5. The subsequent late discovery of relevant material facts was due to late instruction coming from the Commissioner of Lands (“COL”). The major re-organisation of the COL office, giving more power to the Land Board, as a result of amendment to the Land & Titles Act (Cap 133), meant that, instructions was obtained late in early 2015. The re-organising of the COL into Land Board took much of the last quarter of 2014 and first quarter of 2015. In other words, much needed information/instruction to defend this claim did not come quickly to the Attorney General Chambers. When that information came, it became a totally new material evidence, which would alter the first and second defendants’ amended defence.

Main Issue

6. The main issue is: should this new material change of facts, justify a further amendment to first and second defendants’ amended defence.

The Law

7. Applicants rely on R.5.34 (a), (b) and (c) and R. 5.36 (a), (b) and (c) in seeking to further amend their amended defence. Under the said Rules a party may amend the statement of case to better identify the issues between the parties, correct a mistake or defect, or to provide better facts about each issue.

Two Sub-Issues

8. In addition to the main issue, in paragraph 6 above; there are two important sub-issues, in terms of the said Rules above. First, whether the purpose of the amendment is to better identify the issues or to correct a mistake or defect or to provide better facts about each issue. Second, whether another party would be prejudiced in a way that cannot be remedied by awarding costs or extending the time for anything to be done or adjourning the proceeding.
9. As to the first sub-issue, Court is of the view that the amendments are necessary to better identify the issues and to provide better facts about each issue. Among the issues in this case is: whether the COL issued a Notice before forfeiture or Notice of re-entry to the claimant. This will be the main issue for trial in this case. This is an issue for trial, but such issue, must be made clear from the pleadings (or from further amendment to pleadings).
10. Court is of the view that the new facts discovered late are material facts to the main issue in this case. Those new material facts are necessary to better identify the main issue for trial and to provide better facts. Currently, there is a gap in the pleadings as far as Notice before forfeiture is concerned. That gap can be filled either by COL denying Notice or admitting Notice or having some other explanations on Notice.
11. Should the Court decline this application, then the COL will be denied a fair trial. Denied a fair trial, because, although they now know that there was no Notice before forfeiture, they will continue to defend a weak position, not supported by evidence, or should COL lead evidence, then it will not have basis in the pleadings. On the other hand, if the claimant says there was no Notice and COL, cannot disproof, then it makes no difference, to the ultimate outcome? Claimant will still proceed and proof its case.

Ultimate effect of Late instructions from the Land Board

12. Mr Naoapu say in ss evidence that after the Land Board met in the first quarter of 2015, COL wants to further amend the amended defence because of late discovery of new material facts. The ultimate effect of the further amended defence will be that, the COL now admit that there was no Notice before forfeiture, in regards to forfeiture PN: 192-010-204 by the COL. This will support the claimant’s case. Assuming this succeeds at trial, the allocation to third defendants is likely to be cancelled.
13. Late instructions from the government and government agencies is a problem for concern in this Court, not only this case, but other cases as well. Lateness due to re-organising of the COL and the Land Board is reasonable in view of the amendment to the relevant statute in 2014.

Amendments of pleadings at any stage

14. Amendments to pleadings can be made at any stage of the proceeding, including at trial or even after trial^[1], so long as the requirements of the Rules are met and is in the interest of justice and fairness^[2].

Prejudice

15. On prejudice, the relevant Rule is Rule 5.36 (a), (b) and (c). Three factors to consider are costs, extension of time and adjournment. In terms of extension of time and adjournment, there is no prejudice to the third defendants or any of the parties. Counsel for the third defendant did not point to any prejudice. Case is progressing quite fast. Case filed towards end of 2014. You cannot say that delay in having a trial is because of the parties’ action or inaction. In terms of costs, the third defendant had been prejudiced having to incur costs from the adjournments and from opposing the further amendments. Those prejudices could be taken care of by costs. Costs are awarded to third defendants against first and second defendants plus claimant for his role in supporting the application.

Other submissions by Third defendant: Estoppel

16. Counsel Pitakaka argued that the principle of estoppel should apply to stop further amendment because COL (or any government offices for that matter) will change pleadings every time there is a change of leadership. This amendment is not due to change in policy or leadership but due to discovery of new facts. Principle says that amendment to pleadings should not be allowed because the initial pleadings had created an expectation in the minds of the other party that the action will proceed as initially pleaded. Unfortunately, where the Rules have set guidelines for the Court to exercise discretion, estoppel becomes redundant - being only an equitable relief. Repeat and Reaffirm paragraphs 9, 10 and 11 above.
17. The application succeeds in the circumstances; in terms of fairness, justice and guidelines in the Rules. Court order:-

17.1 Leave granted for 1^st and 2^nd defendants to further amend their defence;

17.2 Further amended defence to be filed and served by end of November 2016;

17.3 All consequential amendments to follow;

17.4 Cost against the First and Second defendants and Claimant on standard basis to be taxed if not agreed.

17.5 Mention matter on 31/01/2017, at 9:30 am.

THE COURT

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JOHN A KENIAPISIA
PUISNE JUDGE

^[1] Chow –v- Attorney General (2002) SBHC 68; HC-CC 127 of 2000 (6^th September 2002).
^[2] Chow case.