Solomon Housing Ltd v Konle [2020] SBHC 60; HCSI-CC 265 of 2018 (28 July 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Solomon Housing Ltd v Konle
Citation:
Date of decision:	28 July 2020
Parties:	Solomon Housing Limited v Elson Konle. Noelyn Konle, Aron Konle., Ratu Naika. Maxwell Mane
Date of hearing:	29 April 2020 (Submission hearing)
Court file number(s):	265 of 2018
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota J
On appeal from:
Order:	In view of this, I exercise my discretion and grant the default judgment for the claimant in terms of the orders sought Cost for the claimant to be taxed if not agreed.
Representation:	Ipo M for Claimant Puhimana for the Defendants
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act, s110 [cap 133]
Cases cited:	Sukumara v Pillar [2003] SBHC 153

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 265 of 2018

BETWEEN

SOLOMON HOUSING LIMITED
Claimant

AND:

ELSON KONLE
(Representing himself, family members and relatives)
First Defendant

NOELY KONLE
(Representing himself, family members and relatives)
Second Defendant

ARON KONLE
(Representing himself, family member and relatives)
Third Defendant

RATU NAIKA
(Representing, family members and relatives)
Fourth Defendant

MAXWELL MANE
(Representing himself, family members and relatives)
Fifth Defendant

Date of Hearing: 29 April 2020 (Submission Hearing)
Date of Judgment: 28 July 2020

Ipo M for the Claimant
Puhimana L for the Defendants

RULING ON APPLICATION FOR DEFAULT JUDGMENT

Kouhota PJ:
Background

The claimant is the registered owners of fixed Term Estate in parcel No. 191-052-50 located at Mount Austin area. They purchased the land from the previous registered owners Noris Diana, Silas Chekana and Joseph Douglas as per contract of Sale dated 4^th October 2013 (see exhibit WRS5) annexed to the sworn statement of Wallex Soavaka Ririlifia filed on 7^th August 2018. On 26^th January 2015, Joseph Manehamosa and Elizabeth Votuskai lodged a caveat over the land claiming they have interest over the land as original landowners. The detail facts are stated in the statement of claim on page 2 of the application and are set out below;

On 7^th May 2018 the claimant filed a category (C) against the defendants seeking the following orders;

1. an eviction order against the first, second, third, fourth and fifth defendants;
2. an order directing the first, second, third, fourth and fifth defendants to deliver the vacant possession of the property described as parcel number 191-052-501 to it;
3. a permanent injunction restraining the first, second, third, fourth and fifth defendants, members of their families, relatives, agents, servants or anyone else under their authority or purported authority from re-entry;
4. interest;
5. costs of this action; and
6. such orders as the Court deems just and equitable in the circumstance.

Application for Default Judgment.

This application was filed pursuant to Rule 9.22 and 9.34 of the Solomon Islands Courts (Civil Procedures) Rules 2007. Rule 9.22 states;

“The court may enter judgment under this chapter (other than Rule 45) in favour of the claimant without a hearing “and Rule 9.34 states;
“If a claim is for recovery of possession of land only, the court may enter judgment for the claimant under Rule9. 22 for:

• (a) Recovery of the land as against the defendant; and
• (b) The following cost;
  • (iii) cost for issuing the claim;
  • (iii) cost for obtaining judgment;
  • (iii) any other fees and payment to the extent they have been reasonably incurred and paid”

Facts of the case.

1. The claimant is the fixed term estate owner of the land in dispute namely parcel number 191-052-501 situated at Mt. Austen Valley on the outskirts of Honiara.
2. The company name of the claimant when it had acquired the said land was “Solomon Islands Home Finance Limited.” It has now changed its name to “Solomon Housing Limited.”
3. On or about August 24^th 2012, the Commissioner of Lands wrote a letter to Norin Daina, Silas Chekana and Joseph Doughlas giving its consent for the sale of the fixed term estate in the land in dispute to the claimant.
4. Pursuant a written agreement signed on or about August 28^th 2013, Silas Chekana and Joseph Doughlas had agreed to sell and transfer the fixed term estate in the land in dispute to the claimant for a considerable sum of $5,000,000.00.
5. On or about October 4^th, 2013, a variation agreement was further signed between Norin Diana, Silas Chekana, and Joseph Douglas and the claimant in respect of the sale of the land in dispute.
6. On or about October 9^th, 2013, Norin Diana, Silas Chekana, and Joseph Douglas signed RT Form 4 or Transfer of an estate or lease with the claimant.
7. On or about October 9^th, 2013, the outstanding land rents in the sum of $12,166.50 in respect of the land in question was paid to the Solomon Islands Government.
8. On or about October 10^th, 2013, the transfer registration fee of $100.00 was paid to the SI Government.
9. The fixed-term estate in the land in dispute was registered in the name of the claimant on October 22^nd, 2013.
10. Without the consent of the claimant, the first, second, third, fourth and fifth defendants, members of their families and relatives have entered and occupied the land in dispute. They had also constructed their houses on the said land and are now residing on it.
11. The first, second, third, fourth and fifth defendants, members of their families and relatives have entered and occupied the land in dispute sometimes during the period commencing the year 2015 and ending in the year 2016.
12. The claimant says that the occupation of the land in dispute by the defendants is illegal as it has been done without its consent.
13. The first, second, third, fourth, and fifth defendants have no right to enter and occupy the land in dispute without the consent of the claimant as the fixed term estate owner.

Granting Default Judgment

Granting of default judgment is a discretion of the court to be exercised after considering the cause of delay in filing a defence and the nature of the claim. Thus in Sukumara v Pillar [2003] SBHC 153, Apania J stated “the granting of a default judgment is discretionary. It is determined on having regard to the claim” His Lordship went on and said” In determining whether to grant default judgment the court must have regard to the nature of the claim. If the claim is such that it would be unjust in the circumstances to enter default judgment, the court must not enter default judgment but will set the case down for trial”

The facts of this case are clear and not contested. The claimant has produced an exhibit of its registered title over the land. The defendants did not plead that the title was obtained by mistake or fraud. Those who have placed a caveat on the land are not parties to the present proceeding nor did they apply to be parties to the present proceeding. In this respect, whatever dispute they have is a dispute between them and the persons who sold the land to the claimant. The claimant is an innocent purchaser for value. The defendants had bought the land from persons who claimed to be the original traditional owners. That is an issue for the defendants and the vendors. With regard to the claimant's claim, the evidence shows it has a clear title to the land and it was registered in the name of the claimant. It is an indefeasible interest unless there was proof of mistake or fraud in the registration of the land in the name of the claimant. Section 110 of the Land and Titles Act, Cap 133 states, “The right of an owner of a registered interest, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of court, shall be rights not liable to be defeated except as provided by this Act...” In the present case, the claimant had purchased the land from the previous registered owners for $5,000,000-00 and had the title transferred to them. There was no allegation that there was any fraud or mistake in the transaction. In view of this, I exercise my discretion and grant the default judgment for the claimant in terms of the orders sought. Cost for the claimant to be taxed if not agreed.

The Court.
Justice Emmanuel Kouhota