Patty v Tikani [2001] SBHC 62; HC-CC 197 of 2000 (31 August 2001)

ass="MsoNormal"rmal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> HIGH COURT LOMON ISLANDS

Civil Case No: 197 of 2000

FRAZAR PATTY,

p class="MsoNormal" align="ign="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> ISABEL DEVELOPMENT AUTHORITY (IDA)

v

JAMES TIKANI

class=lass="MsoNormal" style="margin-top: 1; margin-bottom: 1"> High Court of Solomon Islands

lass="MsoNormal" style="mar="margin-top: 1; margin-bottom: 1"> Before: Frank O. Kabui, J

Hearing: 29^thst 2001

Judgment: 31^st August 2001

Mr. J. Apaniai for the aintiff

Mr. G, Suri for the Defendant

JUDGMENT

(Kabui, J): By Notice of Motion filed on 27^th February 2001, the Defendant seeks to set aside the default judgment entered against the Defendant on 29^th November 2000.

The Applicant’s Case

The Applicant being the Defendant has invoked Order 29, rule 12 of the High Court (Civil Procedure) Rules 1964 (the High Court Rules) in the usual way. In support of the Defendant's position, Counsel for the Defendant, Mr. Suri, cited Kayuken Pacific Limited v Harper [1987] S I L R 54, Solomon Islands National Provident Fund v Solomon Islands Electricity Authority (Civil Case No. 55/2000) and the English case of Evans v Bartlam [1937] 2 A.E.R.646 Counsel pointed out that in this sort of cases, there were three things that the Court in the exercise of its discretion ought to consider, namely, the reason for the party's absence at the hearing, the delay by the absent party in calling for a new trial and whether the other side would be unduly affected by an order for a new trial? Counsel argued that on the evidence before the Court, these factors were all in favour of the Defendant including the existence of a prima facie defence.

Th Plaintiffs’ Case

Counsel for the Plaintiff, Mr. Apaniaposed this application. The. The main thrust of his case is that the evidence filed in affidavit form on behalf of the Defendant did not disclose any prima facie defence because Parcel No. 090-002-2 is registered land. Likewise, he argued that the three factors cited by Counsel for the Defendant, Mr. Suri, above were also in favour of the Plaintiff.

The Ruling

090-002-2 (L.R 690) is registered in the names of five persons as joint owners on behalf of the Vihuvunagi tribe of which the 1st Plaintiff is a member. It is registered land and the title is indefeasible under the Land-Titles Act (Cap. 133).

As such, title can only be defeated by proving fraud or mistake unde under section 229 of the Land & Titles Act. What there, if any, is the defence? There is no defence against indefeasibility of title under the Land & Titles Act. Exhibit "T6" attached to Mr. Tikani’s affidavit filed on 19^th April 2001 cannot be a defence to the Plaintiffs claim for trespass against the Defendant because the Plaintiff through the joint owners are the exclusive owners of Parcel No.090-002-2 and no one else. There is no evidence of a prima facie defence, which discloses a triable issue in this case. The fact is that there is no triable issue here. If it is, what is that triable issue? Ownership of Parcel No. 090-002-2 cannot be a triable issue nor is the question of the boundary of Parcel No. 090-002-2. Section 97 of the Land & Titles Act does however enable the Registrar of Titles to ascertain the position of uncertain or disputed boundaries of registered land but the Registrar of Titles does not have the power to alter boundaries. The Court also cannot alter boundaries of registered land under this section. The Defendant must therefore look elsewhere for his remedy. The Defendant has already filed a Writ of Summons and a Statement of Claim in Civil Case No. 029/2001 in which he is the Plaintiff claiming rectification of the register in his favour on behalf of his tribe. Counsel for the Defendant, Mr. Suri, argued that this case could be consolidated with Civil Case No. 029/2001. He said this because Exhibit 76 referred to above is a document containing a defence to the Plaintiff's action in this case and a counter-claim based upon Civil Case No. 029/2001. I do not accept this argument because there is no triable in this issue case. The Defendant's counter-claim is a duplicate of Civil Case No. 029/2001 already filed by the Defendant in his capacity as a Plaintiff seeking the same remedy. On reaching the conclusion that there is no evidence of a prima facie defence disclosing any triable issue, I need not consider the other factors relevant to the exercise of the Court's discretion in either granting the Order to set aside or refusing it. I need not reach that stage in this case. The lack of a prima facie defence in this case is enough to enable me to dispose of this case in favour of the Plaintiff. I refuse the Defendant's application. The application is dismissed with costs.

F.O. KABUI JUDGE