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Ches Investment Ltd v Seketala [2023] SBHC 89; HCSI-CC 365 of 2019 (19 September 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 365 of 2019

BETWEEN

CHES INVESTMENT LIMITED
Claimant

AND

JOHN SEKETALA
Defendant

COUNTER-CLAIM

BETWEEN

JOHN SEKETALA
Counter Claimant

AND:

CHES INVESTMENT LIMITED
First Defendant by Counterclaim

AND:

LEVER SOLOMON LIMITED
Second Defendant by Counterclaim

Date of Hearing: 6 September 2023
Date of Decision: 19 September 2023

Mr Chris Fakarii for the Claimant/First Defendant by Counterclaim
Mr Eran Soma for the Defendant/Counterclaimant
Ms Alice Willy for the Second Defendant by Counterclaim

RULING

Bird PJ:

1. The issue before the court for determination is the application of the Claimant/First Defendant by Counterclaim to strike out the Defence and Counterclaim of the Defendant/Counterclaimant for non-compliance with court orders and pursuant to rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR). In support of the application, Mr Fakarii of counsel for the Claimant/First Defendant by Counterclaim relies on the sworn statement of Gabriel Suri filed on 3 July 2023.
2. The chronology to this case is the following. The Claim of the Claimant was filed on 20 June 2019. On 19 July 2019, a response was filed on behalf of the Defendant/Counterclaimant. On 24 September 2019, after no defence was filed by the Defendant/Counterclaimant, the Claimant/First Defendant by Counterclaim filed an application for default judgment. On 16 June 2020, the court dismissed the application for default judgment and gave the Defendant/Counterclaimant to file a Defence. On 17 June 2020, the Defendant/Counterclaimant filed a Defence and Counterclaim. Levers Solomon Ltd was included as a Defendant in his Counterclaim. On 25 August 2020, the Defendant/Counterclaimant sought and obtained leave to file an amended Defence and Counterclaim. On 28 August 2020, the Defendant/Counterclaimant filed an Amended Defence and Counterclaim. On 16 September 2020, the Claimant/First Defendant by Counterclaim filed their amended rely and Defence.
3. As against the Claimant/First Defendant by Counterclaim, the Defendant/Counterclaimant had sought the following orders:
   1. A declaration that the purported registration of the Fixed Term Estate in Parcel Nos. 192-018-93 and 192-018-96 to the Claimant were made by fraud or mistake are void ab initio and no force or effect;
   2. Consequential order that the Fixed Term Estate in Parcel Nos. 192-018-93 and 192-018-96 be rectified by cancellation of the name of the Claimant;
   3. In the alternative, compensation for the land clearance of Parcel Nos. 192-018-93 and 192-018-96 to be assessed;
   4. Costs;
   5. Further or other relief.
4. As against the Second Defendant by Counterclaim, he seeks:
   1. Specific performance of the letter of offer dated 21 May 2014 between the Counterclaimant and the Second Defendant by Counterclaim for the sale of 1.5 hectares of land at Alligator Creek to the Counterclaimant.
   2. Damages for breach of contract;
   3. Interest;
   4. Costs;
   5. Further or other relief.
5. On 17 November 2020, direction orders were made by the court to progress the matter. On that note, the Second Defendant by Counterclaim filed their Defence on 8 February 2021. On 31 May 2021, consent direction orders were also made and the Defendant/Counterclaimant was to file answers to Defence to Counterclaims. He was also required to made disclosures by 28 June 2021 and inspection by 4 July 2021. He had failed to comply with the consent direction order which led to the filing of an application by the Claimant/First Defendant by Counterclaim to strike out his Defence and Counterclaim. That application was refused by the court. By another consent order of 12 August 2022, the Defendant/Counterclaimant was directed to file his Amended Defence and Counterclaim by 15 August 2022. That direction order was not complied with by the Defendant/Counterclaimant to date. The court notes that a draft “Further Amended Defence and Counterclaim” of the Defendant/Counterclaimant is annexed to the sworn statement of Mr Seketala filed on 30 August 2023.
6. Having stated the chronology of the events leading to the second application now before the court, it is submitted by Mr Fakarii of counsel that the current non-compliance of the orders dated 31 May 2021 is not a new attitude for the Defendant/Counterclaimant. His continuous attitude and conduct has been noted by the court on a number of occasions. See orders of 25 August 2020 and that of 29 June 2022. Those orders would show that the Defendant/Counterclaimant had caused substantial delay to progress this proceeding. It is therefore submitted by Counsel Mr Fakarii that the Defendant/Counterclaimant’s Defence and Counterclaim filed on 28 August 2020 be struck out pursuant to r. 23.3 to 23.6 of the CPR.
7. It is alternatively submitted by Mr Fakarii of counsel that the Defence and Counterclaim of the Defendant/Counterclaimant filed on 28 August 2020 be struck out pursuant to r.9.75 of the CPR. It is submitted by counsel that the Defendant/Counterclaimant’s Defence and Counterclaim does not disclose any reasonable cause of action and is an abuse of the process of the court and must be struck out.
8. It is the Claimant/First Defendant by Counterclaim submission that the pleadings by the Defendant/Counterclaimant does not particularise fraud and or mistake as required under section 229 of the Land and Titles Act (cap 133). It is further submitted that since the Defendant/Counterclaimant is seeking orders for rectification under s. 229 of the LTA, the Attorney General- representing the Commissioner of Lands and the Registrar of Titles should have been joined as parties to this proceeding. That was not done by the Defendant/Counterclaimant and his Amended Defence and Counterclaim is lacking in substance. The Amended Defence and Counterclaim of the Defendant/Counterclaimant should be struck out under r. 9.75 of the rules.
9. On behalf of the Second Defendant by Counterclaim, it is submitted by Ms Willy of counsel that the delay caused by the Defendant/Counterclaimant had been summarised by Keniapisia J in his orders of 25 August 2020 and 29 June 2022. It is submitted by Ms Willy that the reason given by the Defendant/Counterclaimant in paragraph 5 of his sworn statement filed on 30 August 2023 is not a good reason for the long delay in complying with court orders.
10. It is further submitted by Counsel Ms Willy that the Amended Defence and Counterclaim of the Defendant/Counterclaimant filed on 28 August 2020 is a weak one. The Defendant/Counterclaimants pleads breach of agreement by the Second Defendant by Counterclaim to sell the subject lands to him. It is submitted that pursuant to s. 117 (2) of the LTA, there must be a written agreement between the Second Defendant by Counterclaim and the Defendant/Counterclaimant. In this case, there is no written agreement between these two parties and therefore the Defendant/Counterclaimant’s relief for specific performance cannot succeed. The Amended Defence and Counterclaim of the Defendant/Counterclaimant should be struck out with cost.
11. In response to the submissions from counsel Mr Fakarii and Ms Willy, it is submitted by Mr Soma of counsel for the Defendant/Counterclaimant that the delay was also caused by an attempt by his client to settle the issue out of court. The letter of offer to settle was made on 28 June 2022 and it was only in about March 2023 that he was formally informed that his client’s offer was rejected. It is submitted that his client has good reasons for the delay in complying with consent orders dated 12 August 2022.
12. In relation to the application under r.9.75 of the CPR, it is submitted by Mr Soma of counsel that his client’s Amended Defence and Counterclaim filed on 28 August 2020 is a straight forward case. He relies on the ruling of the court dated 3 July 2020 on his client’s position.
13. In respect of the provision of s. 112 (2) of the LTA, it is submitted by Mr Soma of counsel that under the proviso to that subsection, his client is in actual possession of the subject lands after initial payment of SBD$300,000.00 to the Second Defendant by Counterclaim. His client’s right as submitted is therefore protected under the proviso to s.112 of the Act.

Discussion

14. This is a 2019 matter. The Claim was initially filed by the Claimant on 20 June 2019 against the Defendant. On 19 July 2019, Sol-Law filed a response on behalf of the Defendant. No Defence was filed on behalf of the Defendant and an application for default judgment was filed on 24 September 2019. On 17 June 2020, the Defendant filed his Defence and Counterclaim. The application for default judgment was refused by the court by ruling dated 3 July 2020. On 25 August 2020, the Defendant was granted time to file Amended Defence and Counterclaim by 28 August 2020. That order was complied with by the Defendant. By 8 February 2021, the Claimant and Counter Defendants have filed their respective Defences to the Counterclaim. By Consent Order dated 31 May 2021, the Defendant/Counterclaimant was supposed to file his reply by 14 June 2021. All parties were also required to file sworn list of documents by 28 June 201 and inspection by 4 July 2021. On the part of the Defendant/Counterclaimant, he has failed to file a reply and also did not file any list of documents. As a result of non-compliance of the consent direction orders, the Claimant/First Defendant by Counterclaim filed an application to strike out on 9 June 2022.
15. Having noted the conduct and attitude of the Defendant/Counterclaimant in delaying this proceeding, the court dismissed the Claimant/First Defendant by Counterclaim’s application on 29 June 2022.
16. By another Consent Order dated 12 August 2022, the Defendant/Counterclaimant was required to file and serve his Further Amended Defence and Counterclaim by 15 August 2022. That order was again not complied with by the Defendant/Counterclaimant that had led to this second application by the Claimant/First Defendant by Counterclaim. I have nonetheless noted that the Defendant/Counterclaimant had attached a draft Further Amended Defence and Counterclaim to the sworn statement of John Seketala filed on 30 August 2023.
17. On paragraph 5 of that sworn statement, the Defendant/Counterclaimant gave reasons why he was unable to comply with court direction orders. He stated he was very busy dealing with community issues and assisting police to deal with criminal cases. I have noted the reasons and I am of the view that notwithstanding those are the commitments, the Defendant/Counterclaimant and his lawyer also owe a duty to the court in order to progress the same. The court had been too sympathetic with the Defendant/Counterclaimant’s attitude and had continuously condoned his conduct and attitude for more than three years.
18. In his filed Amended Defence and Counterclaim as well as the draft Further Amended Defence and Counterclaim, the Defendant/Counterclaimant pleaded fraud and mistake as a basis for rectification under s.229 of the LTA. I have also perused the Amended Reply and Answer to Counterclaim filed by the Claimant/First Defendant by Counterclaim as well as the Defence of the Second Defendant by Counterclaim. The position of the Claimant/First Defendant by Counterclaim is that their interest is protected under the provisions of s. 229 92) of 110 of the LTA. They deny any form of mistake or fraud as alleged by the Defendant/Counterclaimant.
19. The position of the Second Defendant/Counterclaimant is that there is no allegation of mistake or fraud against them in the Amended Defence and Counterclaim as well as the draft Further Amended Defence and Counterclaim. The Defendant/Counterclaimant is put to strict proof upon each and every allegation against them. It is further the Second Defendant by Counterclaim’s case the Defendant/Counterclaimant has been given title in respect of parcel number 192-018-95 and the money paid to the Second Defendant by Counterclaim is for that parcel of land. And so it is the case for both Defendants by Counterclaim that the allegation of the Defendant/Counterclaimant by Counterclaim could not have succeeded anyway against them.
20. This court had noted that the Defendant/Counterclaimant has delayed this proceeding for a substantial period of time because of continuous non-compliance of consent direction orders. The latest of the consent orders was perfected on 12 August 2022. To this date, the Defendant/Counterclaimant has yet to comply with paragraph 1 of those orders and therefore subsequent orders could not be complied with by the other parties to this proceeding. The Claimant/First Defendant Counterclaimant was not able to progress with this proceeding because of continuous non-compliance by the Defendant/Counterclaimant. Having perused the Amended Defence and Counterclaim of the Defendant/Counterclaimant and also having regard to the provision of s. 229 (2) and 110 of the LTA, the Claimant is a bona fide purchaser with valuable consideration and they have indefeasible title over the subject lands.
21. I also make orders that the Defendant/Counterclaimant is not entitled to any refund of SBD$350,000.00 as claimed on the basis that the said payment is in respect of parcel number 192-018-95 that he has title over and is currently in occupation thereof.
22. Owing to the above circumstances, I grant the application of the Claimant/First Defendant by Counterclaim and make the following orders:
    1. I strike out the Defendant/Counterclaimant’s Amended Defence and Counterclaim filed on 28 August 2020 under rule 23.4 (a) and rule 9.75 of the CPR.
    2. I enter judgment in favour of the Claimant/First Defendant by Counterclaim’s as per their statement of case in their claim filed on 20 June 2019 under r. 9.57 and 9.58 of the CPR.
    3. Cost against the Defendant/Counterclaimant in favour of the Claimant/First Defendant by Counterclaim and also the Second Defendant by Counterclaim.

THE COURT
Justice Maelyn Bird
Puisne Judge