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Perosolo v Attorney General [2023] SBHC 126; HCSI-CC 469 of 2021 (31 October 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 469 of 2021

BETWEEN

FRANCIS PEROSOLO, HILDA KII, RAMOLOUS NONI, REGINALD MANEGU AND MICHAEL BEN WALAHOULA
(Representing Kakau Valimauvo Sub-Tribe)
Claimant

AND:

ATTORNEY GENERAL
(Representing the Registrar of Titles)
1^st Defendant

AND:

JOHN TUPE
2^nd Defendant

Date of Hearing: 16 May 2023
Date of Decision: 31 October 2023

Mr B Upwe for the Claimant
Mr R Dive for the 3^rd Defendant
No one for the 2^nd Defendant

Ruling on application to strike out and ruling on application for default judgment

R. Faukona DCJ: There are two applications to be considered in these proceedings. The first application was filed by the Claimant on 23^rd August 2022, for grant of default judgment against the 2^nd Defendant.

2. The second application was filed by the 2^nd Defendant on 9^th March 2023, to strike out the statement of claim.
3. I consider necessary to deal first with the application to strike out, followed by the application for default judgment.
4. A claim in category A was filed by the Claimants on 17^th August 2021. It was served upon the 2^nd Defendant on 21^st August 2021.
5. On 28^th September 2021, the second Defendant wrote a letter to the Claimant’s Counsel stating that he could not able to file a defence given the irregularities and inconsistencies of the pleadings specifically the numbering of the paragraphs of the statement of claim. The same was intended to request for further particulars and to amend the claim.
6. In reply the Counsel for the Claimant, on 4^th October 2021, informed the Defendant’s lawyer that he failed to identify which particular paragraphs he was referring to as being irregular and inconsistence in the pleadings.
7. It would appear, this is one of the grounds that the Counsel for the 2^nd Defendant relies on in support of his argument in respect of the application for default judgment.

Laws on striking out.

8. Rule 9.75 of S. I Courts Civil Procedure Rules 2007 admonishes three (3) principle tests;
   • (a) the proceedings are frivolous or vexatious; or
   • (b) no reasonable cause of action is disclosed; or
   • (c) the proceedings are an abuse of process of the Court.
9. If one of the tests is proved with the satisfaction of the Court on the balance, the Court may order that the proceedings be dismissed generally or in relation to that claim.
10. From traditional authorities which often refer to in such application as Tikani V Motui^[1], Abe V Ministry of Finance and Attorney General^[2], Zupukana V Sogati^[3], cooperatively assented, that if it appears to the court in relation to the proceedings in general or to a claim for relief, the bench mark in defining frivolous and vexatious is where a claim lacks all merit and was brought for ulterior purpose, that claim cannot be possibly succeed.
11. A claim that discloses no reasonable cause of action is a claim that does not disclose a cause of action and whether it disclose a tenable cause of action for the relief sought.
12. Abuse of Court process is clear when no reasonable person could properly treat as bona fide contend that he had a grievance, which he was entitled to bring before the Court, see Tikani V Motui^[4].
13. The brief approach above, in authorities, is one of general perception which the Courts in this jurisdiction are quite familiar with.

Whether this case is the same as CC NO: 439 of 2019.

14. The Counsel for the 2^nd defendant submits that the parties in this case are the same as parties in Civil Case No. 439 of 2019, except S. I Broadcasting Corporations (SIBC) is not a party to the current case.
15. The remedies sought in CC 439 of 2019 was for rectification of perpetual estate No. 191-079-14 and 191-079-2. However the current claim only sought rectification for perpetual estate No. 191-079-2.
16. Therefore the same remedies sought to rectify perpetual estate No. 101-079-2 are the same remedies in 1, 2 and 3.
17. Hence to revive the same case with the same reliefs and remedies is an abuse of Court process.
18. In any event the significant of the 2^nd Defendant’s case is that, the Claimants should not refile or revive the 2019 case because, it was discontinued. Therefore Rule 9.70 (a) came into play that the Claimants are not to revive the case without the leave of the Court.
19. The Counsel for the Claimant concedes that the current case involves the same parties and contain the same reliefs and remedies in respect of 191-079-2.
20. The Counsel further argues that at that time S. I Water Authority was interested in the parcel because its water pipeline ran across the parcel. Parties agreed to subdivision of parcel 191-079-14 to cater for public interest.
21. In regards to parcel 191-079-2 when it was discontinued there were no evidence based on S.216 of Land and Titles Act which required the 2^nd Defendant to comply with.
22. It would appear that Savino Laugana was a surviving joint owner after Thomas Botu died on 20^th November 2011.
23. Mr. Laugana then presumably invoked S.216 of the Land and Titles Act by producing evidence of Mr. Botu’s death, that he shall be registered as the owner of the interest and became a transferee.
24. The question whether the late Laugana did or not, cannot be verified. What exactly occurred was that the late Laugana was holding the property under S. 200 (b) of the Land and Titles Act. He acquired the ownership of the interest by vestment, but not registered as the owner so that he could be qualified to transfer.
25. What could have occurred is that when the late Laugana died on 5^th June 2013, the late Kululo should have applied for letters of administration, to administer the estate of late Laugona. What he did according to the 3^rd entry of PE estate register, he re-ensured he was a joint owner with late Laugana on 4^th August 2017.
26. Fascinatingly, how could he be a joint owner with the late Laugana who died on 5^th June 2013. The registration of that joint ownership on 4^th August 2017 was done by fraud or mistake.
27. Likewise the transmission of the estate to the 2^nd Defendant as administrator on 15^th April 2021 must of course done by fraud or mistake as well.

Was the Claim filed out of time (time barred).

28. The Defendant’s Counsel argues that the Claim was filed out of time limit of 6 years from the time the cause of action occurred.
29. The Counsel further argues that the Claimants should have filed their claim having knowledge that SI Broadcasting Corporation was registered as lessee in 1994 that was the time the cause of action accrued. Since then the Claimants never challenge the registration.
30. In his submissions the Counsel for the Claimant states the claim is based on breached of S. 216 of the Land and Titles Act, which require a survival owner to be registered first. He further submits that in the Attorney General defence he admitted there was fraud or mistake done, therefore registration of 2^nd Defendant derived from that mistake or fraud.
31. He further submits that there is no issue about lease, and limitation which do not apply. This case concerns transfer from late Laugana to late Kulolo and then transfer to the 2^nd Defendant. That forms the basis of this case.
32. In respect to time limitation in my view time started to run from when the late Laugana died in 2013. Mr. Kulolo did not apply for letters of administration to administer deceased Laugana’s estate.
33. In 2017 he became a joint owner of the estate with late Laugana who died 4 years ago in 2013. Was it a mistake or fraud or lack of understanding the processes as to what to do after the estate owner died?
34. Certainly I would concede that such issue did arise in 2019. The Claimants became to know of such mistake or fraud hence filing of this case. The sworn statement of Michael Ben filed on 23^rd August 2022 attached a copy of the PE register which contain those flaws. In such circumstances time started to run from when the Claimant was made aware of any such mistake or fraud.
35. Therefore there is no time limitation. The claim was filed within the time limitation.
36. A significant issue left concerns with the application of rule 9.70(a) which read, “if the Claimant discontinues his claim he may not revive the claim without the leave of the Court. The word used in the rule is “may”.
37. In the current case the Claimant did not seek leave from the Court before it filed this claim. From legal point of view, when leave is granted it reopens that claim which had been discontinued.
38. As it reflects, the evidence from the sworn statement supporting the claim, tantamount to credible evidence.
39. To strike out the claim at this stage would be unjustifiable, on the basis that a credible case is tumbled down in the face of justice. Therefore in the interest of justice I will dispense with rule 9.70 (a) and allow the substantive claim to proceed to trial.
40. In conclusion I must dismiss the application to strike out.

Application for default judgment.

41. Application for default judgment was filed on 23^rd August 2022.
42. The sworn statement of Walahoula filed on 23^rd August 2023, deposed that the claim was served on the 2^nd Defendant on 21^st August 2021, at Tinge at 11:30 am.
43. The 2^nd Defendant then filed response on 27^th August 2021, six (6) days later. However, according to r.5.37 (6) that a claim must file within 28 days.
44. On 28^th September 2021 the 2^nd Defendant wrote a letter expressing the difficulties he encountered that it was difficult to file defence because of irregularities and inconsistency of pleading specifically numbering of the paragraphs in the claim.
45. I have read the letter. It was not crafted in a form of request for further and better particulars of the claim. In fact there was no letter of request at all. I am unable to locate one in the file.
46. In reality the letter was written nine (9) days late. It could have been better if it was written immediately after the response was filed on 27^th August 2021.
47. I noted the numbering sequence on the paragraphs of the claim. They are mistakes which can be amended in two minutes. They are not serious to be reckon with, nor so grave by allowing it to change the substantive tone of the claim, and affect the legitimacy of the claim dearly. I do not think something requiring small alteration will delay filing of defence. The paragraphs as I read require alteration of numbering sequence which is not a big deal. I can dispense with them and allow them to be numbered at any time without costs.
48. Only few numberings from the beginning appear to be, not the whole numbering of paragraphs in the statement of claim.

Reason for delay.

49. The 2^nd Defendant rely on trivial facts as elaborated above as the main cause of delay. I have found there is no letter of request for further and better particulars. The letter the 2^nd Defendant relies on is not a request and it was written (9) days late.
50. I cannot accept the reason for delay. There is no merit in it at all, and which the 2^nd Defendant cannot rely on.

Arguable defence.

51. I noted there is a draft defence attached to the application to amend the claim.
52. In this hearing Counsels do not address the Court whether this ruling will concern the application to amend the claim.
53. Premise on that, I have excluded the application to amend. That I suppose can be left for another time.
54. In respect to the draft defence of which I have read thoroughly, the missing link which carries no explanation is why Mr. Savino Laugana and Mr. Samuel Kulolos’ names entered and appeared in the 3^rd entry of PE register dated 4^th August 2017.
55. This is a new entry and should not have include Mr. Savino’s name because he died on 5^th June 2013. That is not the function of the surviving owner. He should not enter the name of a deceased person as joint owner of PN 191-079-2 with himself. This is either mistake or fraud committed.
56. The letter of administration appointing the 2^nd Defendant to administer the estate of Mr. Kulolo has no issue.
57. The issue is the entry of joint owners on 4^th August 2017, was still valid when Mr. Kulolo died on 1^st June 2022. Is Mr. Tupe (2^nd Def.) will also administer the estate of Mr. Laugana, whose name is still alive and valid on record, impossible, so it’s a mistake or fraud which the 2^nd Defendant will find it problematic to administer.
58. Therefore I must grant application for default judgment and orders made against the 2^nd Defendant.

Orders.

1. Application to strikeout dismiss.
2. Application for default judgment granted.
3. Grant all reliefs sought in the claim
4. Cost of this hearing be paid by the 2^nd Defendant to the Claimant on standard basis if not agreed upon.

The Court.
Rex Faukona.
DEPUTY CHIEF JUSTICE.

^[1] [2002] SBHC 10; HC-CC 29 of 2001 (18 March 2002).
^[2] [1994] SBHC 22; HC-CC 197 of 2015 (12 August 1994).
^[3] [2016] SBHC 118; HC-CC 117 of 2015 (22 July 2016).
^[4] Ibid (1).