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Rano v Iiuman [2024] SBHC 6; HCSI-CC 26 of 2016 (7 February 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 26 of 216

BETWEEN

WILSON RANO
Claimant/Applicant

AND:

BEN IIUMAN
First Defendant/Respondent

AND:

SAM HOUPERA
Second Defendant/Respondent

Date of Hearing: 12 July 2023
Date of Ruling: 7 February 2024

Mr M Ale for the Claimant
Mr J Taupongi for the 1^st and 2^nd Defendants

RULING ON APPLICATION FOR SUMMARY JUDGMENT AND RULING ON APPLICATION TO STRIKE OUT COUNTER CLAIM

R Faukona DCJ:
Application Summary Judgment.

1. Application in summary judgment and striking out counter claim was filed on 1^st July 2022. It was filed as one application.’
2. A claim was filed on 1^st February 2016. A defence by both defendants and a counter claim was filed on 15^th March 2016.
3. The Claimant’s defence to Defendants’ counter claim was filed on 9^th August 2016.
4. In this application the Claimant sought summary judgment against the Defendants pursuant to rule 9.57 of 54 Court (Civil Procedure) Rules 2007 (The “Ruled”).
5. R 9.57 clearly states that the Claimant may apply to the Court for a summary judgment where the defendant has filed a response or a defence but the claimant believe that the defendant does not have any real prospect of defendant’s claim.
6. This application was filed a 1^st July 2022. On 30^th June 2022, certain direction orders were agreed upon by the Counsels. Mrs. Tahu was the Counsel representing both Defendants on that date.
7. On 30^th June 2023, the Claimant’s Counsel had in mind to file a summary judgment against the Defendants’ defence and counter-claim.
8. Those orders were agreed upon that the Claimant to file application for summary judgment and striking out on 30^th June 2022, and the Defendants to file response to the application on 14^th July 2022.
9. On the next mention day, 16^th March 2023, no Court noted these was no response to the application filed.
10. Despite that failure the Court will record a chance for the defendant to file on 30^th March 2023 and next hearing of the application for 12^th July 2023. On 12^th July 2023, that was still no response and the Court allowed the Claimant’s counsel to proceed with the application.
11. The cordial aspect of civil litigation in that, if a party fails to expend to an application, and even fail to comply with direction order to file response, then that party cannot involve the jurisdiction of the Court to be heard
12. Realizing his position was at state, the Counsel for the Defendant attempt to explain why no response was filed, the major reason is that he did not file separate claim in yet. There are many defendants and he has to sort them out by separating them, taking at other cares and other owners.
13. Secondary he came into the picture in later, and two years after he filed notice of change of advocate in Civil Case No. 104 of 2017, a case consolidated with this case by order of Court on 19^th July 2017.
14. Until the hearing of this application on 12^th July 2023, it was two years, still no separate claim was filed.
15. This is a care of trespass on to a registered land owned by the Claimant. The Counsel for the Defendants admitted that the only defence is on allegation of fraud and the counter claim.
16. However, he further submits by admitting that fraud cannot be proved at this stage. And that his clients were there because of fraud. As a matter of fact he admits and does not dispute the tests, and will pick up the counter claim to file a separate case.
17. It would appear the Counsel for the Defendant has evaluated his client’s case and has concluded that there is no prospect of defending the defendants claim. Therefore the only way out is to file a separate claim.
18. However, I noted the argument which may carry some basis is the question that there is no reasonably cause of action disclose as one of major element in the application to strike out.
19. The argument was put in reverse. R.9.75 after to a claim discloses no reasonable cause of action and not defense.
20. From defence submission and admiring I am satisfied that the defendant have no arguable case of these is no need for trial of the claim.
21. In that circumstances, to assist on success of defence will merely have effect of delaying judgment, see Boxter v Glengrow (SI) Ltd [2016] SBHC 83; HC59 – cc 86 of 2014 (2 June 2016).
22. The Claimant’s case is centered on trespass, the relevant requirement is establish ownership of the property and any authorized entry.
23. The certificate of title of land exhibit “WR1”attached for the Claimant’s sworn statement filed on 1^st July 2016, is undisturbed showed a PE ownership by the Claimant who holds exclusive indefectible title over the property.
24. The Defendants have admitted entry into the subject Land, see paragraph 6 of statement of defence and submissions by their counsel. The purpose is to dig the land with intention to occupy it.
25. The only dispute raised by the Defendants is that the previous cases had enquired the title by fraud is mistake and because of this very reason the defendant, wish to abandoned this case and filed a separate case to challenge the title of the previous owners. This is to pave the way for that the Counsel for the defendants wish to file a separate claim and to include the Commissioner of Land, and the Register of Titles, who are not parties for this proceedings.
26. Even if the defendant persist to continue with this proceeding I find they have no real prospect of defending the claim. Not only that their intention to abandon this proceeding and file a separate cases is a prospect looming hence less intention is given for this case. I must therefore uphold the belief by the Claimant, the defence has no prospect of defending.
27. Perhaps, the other reason can be calculated why the defence counsel has admitted relevant issue in this case as trespass without good reason.
28. In conclusion I must raise summary judgment against the defendants with costs.

Application for Striking Out.

29. This application is basically to strike out the counter claim of the Defendants. The Counsel for the defendant has admitted in his submissions that he will pick on the counter claim to file a separate case.
30. That simply implicate the counter claim is also abandoned and may offered later in a separate claim.
31. I have read the counter claim. The first paragraph makes reference to paragraphs (1) to (12) of the claim. That simply mean the counter claim was made on the basis of the claim, or the existence of the claim.
32. Since the claim has been summarily dismissed, the claim cannot hang on air. It has to have counter a base to rely on. Since the case has been summarily dismissed the counter claim cannot stand isolated but has to be strike out as well.

ORDERS.

1. Application for summary judgment against the defendant’s defence is granted.
2. Application for strike out the counter claim is granted.
3. Court of this hearing be paid by the defendants to the claimant.

THE COURT.
Hon. Rex Faukona
Deputy Chief Justice.