Korean Enterprises Ltd v Maedani [2006] SBHC 81; HCSI-CC 257 of 2004 (11 April 2006)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 257 of 2004

KOREAN ENTERPRISES LIMITED

-v-

PETER MAEDANI AND JOHN MAEDANI
(Representing themselves, members of their families and relatives residing in Parcel Nos. 192-007-94 and 192-007-95)

(Mwanesalua, J)

Hearing: 22nd April 2006
Judgment: 11th April 2006

A. Hou for the Applicant/Plaintiff
J. Godbolt for the Respondents/Defendants

JUDGMENT

(Mwanesalua J). The Plaintiff is the registered owner of Parcel Numbers 192-007-94 and 192-007-95 (the Lands) at Burns Creek, East Honiara. These are fixed-term estates for 50 years granted by the Commissioner of Lands on 15th October 1998. The term of 50 years commenced to run from 1st January 1998. The Defendants began unlawful occupation of the Lands since 1st January 1998.

On 29th June 2004, the Plaintiff filed a writ of summons and statement of claim against the Defendants to regain possession of the lands and for mesne profits limited to $25,000.00. The Defendants filed their defence and counterclaim on 12th August 2004.

In the meantime, the Plaintiff filed a summons on 20th September 2004, seeking orders inter alia, to strike out the Defendants’ defence and counterclaim. On 18th February 2005, the Plaintiff filed an Amended Summons. The two main orders sought by the Plaintiff are:

1. That the Defendants’ defence be struck off on the grounds -

(a) that it fails to reveal a defence known in law;
(b) that it is privolous and vexatious.

2. That the Defendants’ Counterclaim be struck off on the grounds -

(a) that it fails to disclose a reasonable cause of action;
(b) that it is privolous and vexatious.

In their defence, the Defendants denied that the Plaintiff lawfully acquired title to its lands. Although the Defendants claimed illegality in the manner in which the Plaintiff acquired its title to the lands, they failed to state facts in their defence showing such illegality. On the contrary, the evidence deposed to on behalf of the Plaintiff by Esther Kim showed that the Plaintiff acquired its title lawfully. On 25th April 1994, the Plaintiff lodged its application to the Commissioner of Lands to acquire the Lands then known as Lots 241 and 242, for vegetable farming and other developments. On 8th August 1994, the Commissioner of Lands offered the lots to the Plaintiff in writing. The Plaintiff then employed a private surveyor to survey and place boundary marks on the lands. The Commissioner of Lands finally granted registered title on the lands to the Plaintiff on 15th October 1998.

The Plaintiff has documentary evidence of its title to the lands. The Defendants can only assail the Plaintiff’s title under Section 229 of the Land and Titles Act (Cap.133). But the Defendants have not been able to point to any evidence of fraud or mistake in this case. The Defendants have no valid defence in view of the Plaintiff’s documentary evidence of its title to the lands. The Plaintiff’s title to the lands is intact and absolute. I order that the Defendants’ defence be struck out as being frivolous and vexatious.

The Defendants filed counterclaim for the value of developments which they made on the Plaintiff’s lands in the amount of $178,410.00. They did not provide particulars of the developments which they sought payment from the Plaintiff. They claimed that they carried out the developments over the period in which they have enjoyed undisturbed occupation of the Plaintiff’s lands.

But evidence deposed to by Esther Kim on behalf of the Plaintiff indicated that the Defendants did not have peaceable, overt and uninterrupted occupation of the Plaintiff’s lands. The Defendants did not counter that evidence at all.

The Plaintiff commenced its vegetable farming on the lands on or about 1994. The Defendants started building temporary houses on the Plaintiff’s lands from 1995 onwards. The Plaintiff advised the Defendants on its interests in the lands and their boundaries. Between 1995 and 1998, the Plaintiff’s vegetable farm had been repeatedly destroyed by the Defendants.

The Plaintiff sent its employees to look after the vegetable farm and other properties, but the Defendants had chased them out from the lands. The Defendants went on to remove the boundary pegs erected by the Plaintiff’s Surveyor and build more permanent and semi permanent houses on the lands. The Plaintiff then planted and replanted coconuts on the lands to serve as boundaries, but the Defendants also removed these coconuts. The latest incident of this occurred in 2003.

The Defendants have no registered interest in the lands. They do not have any rights to occupy, use and make any developments on the lands. Only the Plaintiff has these rights as the owner of the registered interests in the lands. The Defendants do not have any valid action against the Plaintiff. Their Counterclaim cannot succeed. It is privolous and vexatious. I order that that the Counterclaim be struck out.

ORDERS OF THE COURT:

1. The Defendants’ defence be struck out;

2. The Defendants’ Counterclaim be struck out;

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

4. That the Defendants, their servants, agents, family members, relatives and others entering the lands under the authority of the Defendants vacate the lands and deliver vacant possession thereof to the Plaintiff within 3 months of the date of the making of the order herein and a writ of possession be issued in default thereof;

5. That the Defendants, their servants, agents, family members, relatives and others entering the lands under the authority of the Defendants be permanently restrained from entering the lands.

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

7. The Defendants pay the Plaintiff’s costs of this application.

The Court