Bettke v Sada [2016] SBHC 209; HCSI-CC 370 of 2016 (23 November 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

ROSELYN BETTKE
Claimant

AND:

FRANCIS SADA

Defendant

Date of Hearing and Ruling: 23 November 2016

Mr. G. Suri for claimant
Mr. P. Tegavota for defendant

Brown J:

Extempore Ruling

The question whether or not to set aside the judgment goes to the weight of the claim for continued occupation and right of possession of registered land, contrary to that of the registered owner. The issue of delay has been explained.

I must also, on the evidence adduced by the applicants to set aside the judgment, consider the prospects of success.

While they have been residing on the subject parcels for some 30 years, the land parcels were sold by the perpetual estate owners in 2013 and the claimant has become by transfer for valuable consideration, the registered owner. No disclosed rights to continued occupation by those claimants to set aside the judgment appear from the statement of Francis Sade, apart from a assertion to a “Meritorious defence”; while he states that the three fixed Term estate parcels are owned by the Haubata Tribe, the evidence of the Register of lands is to the contrary, for they are in the name of the applicant.

The provisions of S.224 of the Land and Titles Act do not avail, for the owner has with in the 12 years period, taken steps to exercise her right to possession. Adverse possession needs to be for that period at least, contrary to the rights of the owner.
No better right to possession by these occupiers has been shown on the application, Francis Sade’s evidence or that of Peter Sade.

No rights have been disclosed, [apart from a claim to occupy customary land], in terms of S.114 (g) sufficient to oust the right of possession by the registered owner. No good defence on the merits is shown.

The defendant may by virtue of some customary right, have a claim in personam against the previous owners who sold the land for money in 2013. Those persons may well have been tribal members, and so may be said to be tribal members who sold the land from under these persons in occupation.

But in terms of the Land and Title Act, in respect of registered land, no persons shall have rights unless expressely provided for and here, following sale in 2013, the right claimed under S.114 (g) is not made out. The occupiers’ right may be one in custom against the tribal members, following the sale of the land from under them, but no better claim to resist the claim for possession by the registered owner has been shown.

The application must fail, and is dismissed. The claimant shall have an order for possession.
The defendant shall pay the claimant costs.

__________________
BROWN J