Rano v Kaipua [2016] SBHC 214; HCSI-CC 181 of 2011 (30 November 2016)

IN THE HIGH COURT
OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN: WILSON RANO & LEONARD - Claimant
ROTU (Owner of fixed term estate of

parcel no. 191-002-75)

AND: MACLIS KAIPUA - Defendant

Date of Hearing: 17 November 016
Date of Judgment: 30 November 2016

Mr. W. Rano for claimant
Mr. A. Hou for defendant

Brown J:

The matter originally came before the court on an application for possession of land in 2011. Following the Registrars direction the application was re-served on the defendant after that default judgement for possession was given the claimant.

Subsequently very many applications and appearances have been made culminating in the setting aside of the judgment for possession and further an order for trial of the claim. On the 26 February 2016 a Defence, filed out of time was delivered and following that a Reply to the Defence filed. Since no objection to the Defence was made in the light of the Reply, I propose to admit the Defence.

The Reply clearly put in issue the lack of strength of the defendants Defence to the claim for possession. In paragraphs 1 [ i ] to (vii) of the Defence, the defendant admits the fact of the ownership of the estate in the claimant but pleads that registration was carried out by fraud or mistake.

By paragraph 1(vii) the defendants asserts frauds or mistake on the part of the Commissioner of lands and the Registrar of Titles, relying on matters of survey which do in the court’s finding, not support acts purporting to be a fraud on the defendant or mistake justifying rectification.

Even were the Court to consider the Defence on trial, the absence of any right to possession in the defendant rather undermines his claim to defend the right in the claimant to exercise ownership of the registered estate for the claimant has the better claim to possession.

I mention this since by the Rules the court must deal with the case fairly and justly for as Mr. Hou says, his client should not be penalized if he is unable to obtain moneys sufficient to pay the costs previously ordered. Of course, this is a peripheral issue in the absence of any default provision made in relation to payment of costs being conditional on the defendant’s right to maintain his defence but an issue which I am asked to address in all fairness in view of default by the defendant. That impecuniosity may be balanced as it were, with the requirement to meet the terms of the court order requiring payment of $25,192.67 by 10 October 2016.

By R.1.4 this court must exercise its discretion when further time is sought to meet payment under that court order given on the 9 September.

Mr. Hou today, in response to Mr. Rano’s application to have the defence struck out in absence of payment has given evidence from the bar table in support of the defendants’ further application for time.

While Mr. Hou has stated that his client is in financial difficulties and not able to meet the order, the fact remains this court is unable to assess the defendants’ financial circumstances in the absence of any statement. Clearly, the balance of convenience rests with the claimant, for the claimant has a court order which has been breached. No application has been properly made to vary that order on the basis of the defendants’ inability to pay in the time allowed, rather the balance under R.1.4 is clearly now to accept no further delay in these proceedings, for the claimant has been waiting some five years for a just determination.

As I say on the face of the Defence filed I find no better right to possession lies with the defendant.

In terms of the application of the claimant filed on the 8 September and reliant on the Rules, I now order the defendant’s Defence be struck out for failing to comply with the court orders of the 9 September.

There is a further order of the 12 February 2016 where-by the defendant was required to pay $ 4,000 before trial. It appears that order also has been breached since no moneys have been paid into court.

The practicalities of the case in terms of R 1.4 (c) require me to proceed with the originating claim. Further delay will only prejudice the claimant. The Claimants are the registered proprietors.

What should be noticed is that during the course of these proceedings, a third party, claimed by the claimants to have been authorized by the defendant to occupy part of the subject land, has also taken part possession of the land.

Since that 3^rd party who is not in possession by the authority of the owner, and on the basis of the claimants evidence has occupation through the acts of the defendant this court will also include a power in the Sheriff to evict all persons found to be occupying the land adversely to the claimant for these delayed proceedings have facilitated acts detrimental to the enjoyment of the claimants and the court in justice may make an order restoring the possession, occupation and use of the land to the claimant’s after such a length of time.

There is no dispute that a house has been build and occupied since 1999. The claimants have had no benefit as a consequence of the defendants occupation since becoming registered owners.

By application filed on the 17 May 2011, the claim for possession and additional orders are sought to include;

1. Damages for trespass;
2. Damages for loss of future earning or mesue profit at a rate of $ 5,000 per month;
3. An order that the building on the land remain and
4. A permanent restraining order and
5. Costs on an indemnity basis.
   

So far as claim 2 is concerned damages for trespass is refused since only today has the court confirmed the right to possession and occupation had remained with the defendant.

So far as claim 3 is concerned the right to mesne profits is available but evidence will need to be furnished in support of this claim. Such a claim may only date from the time of institution of proceedings.

The building on the land may be dismantled and taken by the defendant since it was built by him although it now constitutes a fixture.
In my discretion, I allow removal with-in one month, failing which it will remain and become the property of the claimants.

I accordingly order judgment for possession, execution of the judgment to be stayed for a period of one month to permit the defendant and the other occupiers’ opportunity to vacate, failing which the claimant is at liberty to seek enforcement.

I give liberty to apply in relation to these orders.

The proceedings may be relisted on application for Mesne profits.

The claimants’ assessment of costs on the 3^rd schedule basis amounts to $ 30,000. I accordingly award costs in this amount in favour of the claimants.

These costs are exclusive of the earlier costs order which remain due and owing.

In relation to the award of costs in the sum of $ 30,000 payment shall be made by the 28 February 2017.

In relation to the earlier costs order, such moneys are due and payable forthwith.

__________________
BROWN J