Oge v Donga [1998] SBHC 133; HCSI-CC 105 of 1998 (6 November 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 105 of 1998

CHARLES OGE

-v-

JACK DONGA

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)
Civil Case No 105 of 1998

Hearing: 6th November, 1998
Judgement: 6th November, 1998

D. Hou for the Plaintiff
S. Manetoali for the Defendant

PALMER J.: The Plaintiff is the registered owner of fixed-term estate parcel no. 191-038-18 at Fishing Village, Honiara. In Exhibit “6” annexed to the affidavit of Charles Oge filed 25th August 1998, his block is identified as Lot 434.

The Defendant is also the registered owner it seems of the fixed-term estate in parcel no. 191-038-19 also at Fishing Village. His block is also identified in Exhibit 6 as Lot 435.

Between Lot 435 and Lot 431 (Parcel no. 191-038-15) is an access road. The Plaintiff whose property is located immediately west to the said access, a couple of blocks away also uses the said access way.

It is not in dispute that the access way had been put in place right from the beginning and duly approved by the Honiara Town and Country Planning Board (“the HT&CPB”) when the various blocks of land in Fishing Village were subdivided and registered (see letter from the Secretary to the HT&CPB dated 24 February, 1998 - this is Exhibit 2 in the affidavit of Charles Oge filed 25th August, 1998). Also see Exhibit 4 to the same affidavit, which is a letter from the Commissioner of Lands dated 8th April 1998 to the Defendant telling him to remove his property from the said access way. The Plaintiff relies on and depends on that access way to get to and from his place. To that extent he clearly has a proprietary right over that easement.

Problems however arose when without cause the Defendant extended his buildings beyond his block of land into the said access way and put up obstacles without authority. He had been asked to remove these by responsible persons but without success. The Plaintiff therefore had to come to Court for relief and now files summons for leave to enter judgment on the basis that there is no defence to his claim.

The Plaintiff relies essentially on a crucial affidavit filed by a Lands Officer, Christopher Gauba on 25th September, 1998. In paragraph 2 of the said affidavit, the Deponent confirms clearly that the Defendant had encroached upon the access way. No affidavit in reply had been filed by the Defendant. In the hearing this morning the Defendant did not turn up as well to give any instructions to his Counsel to oppose the application.

That affidavit with respect is crucial. I have read the Defence filed on 14th September, 1998. Paragraph 2 only refers to other access roads which may be used. Unfortunately that is immaterial to whether the Defendant had any rights to block or build into the access way. He has shown nothing on the evidence to justify his actions. All the responsible authorities deny any knowledge of any rights or authority given to justify his actions. To the contrary, the tenor of their letters were to the effect that the Defendant must remove the intrusions and blockages caused. The Defendant’s block is clearly delineated by boundary marks V10, V11, V35 and V36. His block of land does not include nor encroach into the access way. For him to try and lay claim on the said land or part of the said land is like trying to take something which does not belong to him. This is the simple truth of the matter. The only interest he has over the said land is identical to the rights of the Plaintiff; a right of way (an easement).

I am satisfied there is no defence to the claim of the Plaintiff. I am also satisfied the Plaintiff has locus standi to take up this case against the Defendant as an aggrieved or affected party and therefore is entitled to the application sought.

ORDERS OF THE COURT:

1. LEAVE TO ENTER FINAL JUDGMENT IS GRANTED.

2. DAMAGES IF ANY TO BE ASSESSED IN CHAMBERS.

3. THE DEFENDANT IS TO REMOVE ALL ENCROACHMENTS AND OBSTRUCTIONS WITHIN SEVEN (7) DAYS FROM DATE OF THIS DECISION.

4. COSTS OF THE PLAINTIFF TO BE BORNE BY THE DEFENDANT.

THE COURT.