Taloaniwaiau v Ha'aina [2001] SBHC 154; HC-CC 215 of 2001 (5 November 2001)

HIGH COURT OF SOLOMON ISLANDS

CIVIL CASE NO. 215 OF 2001

ROBERT TALOANIWAIAU

–V-

HENRY HA’AINA & OTHERS

HIGH COURT OF SOLOMON ISLANDS
(PALMER ACJ)

HEARING: 2ND NOVEMBER 2001
JUDGMENT: 5TH NOVEMBER 2001

A & A Legal Service for the Plaintiff
D. Hou for the First Defendant
Second Defendant not present
Third Defendant not present

PALMER ACJ: This is an application by Summons filed 28th September 2001 for leave to enter judgment against the Defendants. Application is pursued under Order 14 rule 1 of the High Court (Civil Procedure) Rules [“the Rules”] which requires Plaintiff to file an affidavit in which he can positively testify inter alia, that there is no defence. This is an important requirement for purposes of issue of the Summons, failing which normally the Summons would not be issued. Registrar of High Court ought to have refused to list Summons in those circumstances. Unfortunately this was not picked up before matter was proceeded with at the hearing of the Summons. The matter accordingly had been proceeded with on the assumption that there was no defence on the merits.

Claim of Plaintiff

Plaintiff is the registered owner of the Perpetual Estate in Parcel Numbers 251-006-3 and 251-006-4 (hereinafter referred to as “the Plaintiff’s Lands). Title is not in issue. On 13th September 1995 first Defendant registered caveats over the Plaintiff’s Lands. By letter dated 23 April 1998, Plaintiff applied to the Registrar of Titles under Section 203(4), now Section 223(4) of the Land and Titles Act [Cap. 133] to have the caveats removed. On 16 June 1998, Counsel for the Plaintiff repeated his request for the caveats to be removed (see Ex. RT8 annexed to Affidavit of Robert Taloaniwaiau filed 28th September 2001). Call was repeated for the third time by letter dated 17th July 1998. On 12 August 1998 Registrar of Titles issued formal notice to the first Defendant pursuant to section 203(5) now section 223(5) (Ex. RT11) to withdraw caveats or substantiate claim within 30 days. First Defendant failed to withdraw caveats within 30 days or to substantiate claim. Registrar of Titles ought thereby to have the caveats removed after the 30 days notice had lapsed. Unfortunately this was not done. No explanation has been provided as to why caveats had not been removed. Subsection 223(5) is mandatory; Registrar was obliged to remove the caveats when claim had not been substantiated. Failure to do so can only be described as dereliction of duty and could ground possible claims for damages against the State and the Registrar of Titles.

As a result of the failure of the Registrar of Titles to remove caveats promptly Plaintiff has had to incur unnecessary costs to come to court for relief. I would have been prepared to entertain Plaintiff’s claims for costs had that been sought. Apart from that, Plaintiff also claims damages for trespass to his lands. These include damages claimed for the felling of trees, building of houses and the making of gardens in his lands. Plaintiff alleges the first and second defendants carried out the above activities without his permission.

Defence of the Defendant

The defence of the first Defendant is primarily based on his claim that Plaintiff is registered as owner in trust or on behalf of the Pawa Landholding Group, not as sole owner. On that basis he asserts the registers should be rectified. Unfortunately, he has not produced any evidence that Plaintiff had been registered as owner in trust or filed any claim for rectification of the registers. Onus lies on first Defendant to show he has defence on the merits.

Admitted facts

The first and second defendants (“the Defendants”) reside in the vicinity of the Plaintiff’s Lands. Plaintiff admits this at paragraph 2 of his Statement of Claim, confirmed by the first Defendant in his Affidavit filed 30th October 2001. This raises interesting questions as to possible rights, which the Defendants may have for residing in Plaintiff’s Lands. What rights of occupation do they have? Is it by lease or other rights in law? What are the boundaries or areas over which they can exercise rights over without disturbance from the Plaintiff if any? What rights or activities are they entitled to enjoy, are they trespassers per say and ought to be evicted?

The first and second Defendants deny trespassing on the Plaintiff’s Lands (see Affidavit of Samuel Sautahi filed 30th November 2001, also affidavit of Henry Ha’aina filed 30th November 2001). I am satisfied they have shown there are triable issues on the question of trespass which would require further enquiry. Accordingly, it is my respectful view that the issue of trespass be determined as a separate issue. The matter should be adjourned to chambers and further directions issued as to how that matter should be determined. In my respectful view, any affidavits Plaintiff wishes to rely on should be filed within 14 days, replies by the Defendant 14 days thereafter. Matter to be listed for hearing thereafter.

Conclusion

The first Defendant has not established on the merits any defence to the Plaintiff’s claim for removal of the caveats nor shown that title is held in trust or on behalf of the Pawa Landholding Group. All that the first Defendant has done is to assert that Plaintiff holds title in trust but has not produced evidence to that effect. Plaintiff thus is entitled to require that the Registrar of Titles have the caveats removed with immediate effect. Unfortunately, the proper way to do this is to apply for a writ of mandamus to compel the Registrar of Titles comply with the statutory requirements of Section 223(5) of the Land and Titles Act. He has not done so and therefore Court cannot compel Registrar of Titles to comply. However common sense must prevail in the circumstances. The most this court can do is to grant a declaration to the effect that the caveats should be removed with immediate effect. There is no basis on which those caveats are allowed to persist. By failing to remove them timeously, the Registrar of Titles has opened himself up to possible claims for damages for any losses which might be incurred as a result.

I am satisfied the Plaintiff should be granted his costs in this action to be paid by the Registrar of Titles.

Orders of the Court:

1. Grant application for Leave to enter judgment on the basis that the first, second and third Defendants do not have a good Defence to the Plaintiff’s claim for a declaration that the caveats imposed in respect of the Perpetual Estates in Parcel Numbers 251-006-3 and 251-006-4 be removed.
   
2. Issue declaration that the Registrar of Titles is obliged to have the caveats removed from the Plaintiff’s Lands with immediate effect.
   
3. Find that first and second Defendants have raised a good defence on the merits regarding the issue of trespass and accordingly matter should be adjourned to chambers with directions as follows:
   
   • (a) affidavits in support to be filed within 14 days;
   • (b) affidavits in reply to be filed 14 days thereafter; and
   • (c) matter to be listed for hearing thereafter.
     
4. Costs of the Plaintiff in this action are to be borne by the Registrar of Titles.
   

The Court.