Variety Hardware Ltd v Tautai [1999] SBHC 154; HCSI-CC 160 of 1998 (3 September 1999)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 160 of 1998

VARIETY HARDWARE LIMITED

v

WILLIE TAUTAI

Before: Kabui, J

Hearing: 30th August 1999
Judgment: 3rd September 1999

S. Patrick for the Plaintiff
Defendant in Person

JUDGMENT

(F. O. Kabui, J):

The plaintiff is the registered owner of parcel numbers 191-003-117 and 191-003-118 at Tandai, West Honiara. These are fixed-term estates for 50 years granted by the Commissioner of Lands on 26th August 1999 to the Plaintiff. The Defendant for some reason saw it fit to erect a shack on the Plaintiffs land and resided therein with others without the permission of the Plaintiff. An attempt by the Plaintiff to build on its land had not been successful due to the Defendant and others obstructing and claiming they had rights over the land upon which they had built their shack. Further attempts by the Plaintiff in the exercise of its rights over its land had been thwarted by the Defendant and others. In order to repossess its land from the Defendant and others, the Plaintiff got leave and filed a Writ of Possession against the Defendant on 11th September 1998. By Originating Summons filed on 29th September 1998, the Plaintiff sought the following orders:

1. A declaration that the Plaintiff is registered holder of the Fixed Term Estate in the land described as parcel numbers 191-003-117 and 191-003-118;

2. A declaration that the Plaintiff be entitled to the sole exclusive use, occupation and quite enjoyment of parcel numbers 191-003-117 and 191-003-118;

3. A consequential order that the Defendant, his servants, agents, relatives and others claiming through vacate parcel Nos. 191-003-117 and 191-003-118 within 7 days of such order;

4. Such further order or other order as to the Court seems meet;

5. Costs.

The Originating Summons was served on the Defendant on 8th February 1999. The Defendant had apparently failed to file an appearance to the Plaintiff's Originating Summons. Consequently, the Plaintiff filed a Notice of Motion for Judgment on 14th June, 1999. Due to difficulty in serving the Defendant personally, an order for substituted service was obtained from the Registrar on 10th August 1999. That was effected at .3:30 pm on 25th August, 1999 by affixing the Court documents to the main entrance door of the Defendant's house on the Plaintiff's land. This case being commenced by an Originating Summons and the Defendant having failed to enter appearance within 8 days specified in the Originating Summons should have been dealt with under Order 13, rule 10 of the High Court (Civil Procedure) Rules 1964 (the High Court Rules). However, the Plaintiff chose to come to this Court by way of Notice of Motion for Judgment under Order 42 of the High Court Rules. Coming to this Court via a different route is in my view not fatal in this case. Clearly, on the facts, the Defendant would not have had a valid defence at all in view of the Plaintiffs documentary evidence of its title to the two parcels of land in question. The Defendant can only attack the Plaintiff's title under section 229 of the Land & Titles Act (Cap. 133). There is absolutely no evidence of fraud or mistake in this case and so the Plaintiff's title to its two parcels of land is absolute. I would therefore grant Orders 1, 2, 3 and 4 sought in the Originating Summons being Orders 2, 3 and 4 in the Notice of Motion. I would also grant Orders 1, 5, 6 and 8 sought in the Notice of Motion for Judgment. The combined Orders of this Court therefore are:

1. That the Plaintiff have leave to enter judgment in this matter;

2. A declaration that the plaintiff is the registered holder of the Fixed Term Estate in Parcel Nos. 191-003-117 and 191-003-118 ("the Lands");

3. That the Plaintiff is entitled to the sole and exclusive use occupation and enjoyment of the Lands;

4. That the Defendant, his servants, agents, relatives and others entering the Lands under the authority of the Defendant vacate the Lands and deliver vacant possession thereof to the Plaintiff within 7 days of the date of the making of the order herein;

5. That the Defendant, his servants, agents, relatives and others entering the Lands under the authority of the Defendant be permanently restrained from entering the Lands;

6. That the Provincial Police Commander at Honiara and any Police Officers under his direction forthwith upon receipt of this order and upon the request of the Plaintiff or its solicitors shall attend and enforce orders 4 and 5 hereof using such force as is necessary for such purposes;

7. That a penal notice be attached to orders 4 and 5 made herein;

8. The Defendant pay the Plaintiff's costs of and in connection with this action;

In furtherance of Order 7, I am prepared to attach to Orders 4 and 5 a Penal Notice to the Defendant that any breach of each or any of Orders 4 and 5 above will he regard as contempt of Court and may lead to a fine or imprisonment. Although a Penal Notice is not specifically sanctioned by the High Court Rules, I think it is useful to do so in this case where the Defendant is unrepresented and Defendant may not really appreciate the seriousness of disobeying Orders 4 and 5.

F. O. Kabui
Judge