Rota v Kossa [2022] SBHC 101; HCSI-CC 715 of 2019 (17 November 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Rota v Kossa
Citation:
Date of decision:	17 November 2022
Parties:	Henry Rota v Anthony Kossa
Date of hearing:	20 July 2022
Court file number(s):	715 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; PJ
On appeal from:
Order:	1. Application for summary judgment granted. Amended defense filed by the Defendant is hereby dismissed. 2. The cost of hearing of this application is to be paid by the Defendant to the Claimant.
Representation:	Mr. B Upwe for the Claimant No One for the Defendant (Mr B Etomea, absent, barred by unless order)
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act S 244 (1)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 715 of 2019

BETWEEN

HENRY ROTA
Claimant

AND

ANTHONEY KOSSA
Defendant

Date of Hearing: 20 July 2022
Date of Ruling: 17 November 2022

Mr. B Upwe for the Claimant
No one for the Defendant (Mr. B Etomea, absent, barred by the unless order)

RULING ON APPLICATION FOR SUMMARY JUDGMENT

Faukona, DCJ.

1. An amended claim was filed by the Claimant on 18^th February 2021. The claim was specifically for eviction order to evict the Defendant, his family, servants, agents, or associates from Lot 7/16 of LR280 in FTE No. 190-001-085, now PN 190-001-115.
2. And to remove his house structure from the said FTE parcel number.
3. Alternatively to permanently restrain the defendant and his associates and family members, servants not to enter the parcel number.
4. On 16^th March 2021, the Defendant filed an amended defense.
5. After being served with the amended defense, the Claimant then filed this application pursuant to rules 2.9, 7.5 and 9.57 of the Courts Civil Procedure Rules 2007.
6. There was no response by the Defendant to the application for Summary Judgment. As a result, the unless order was issued on 25^th October 2021, barring the Defendant from filing any response. This was in consequence for none compliance with the direction orders of the Court.
7. On 20^th July 2022, this application was heard without the presence of the Defendant or his Counsel, due specifically for the effect of the unless order.
8. On 11^th August 2006, the Claimant applied to the Commissioner of lands for the allocation of a portion of land in respect of Lot 7/16 or LR 280 situated at Aruligo, West Guadalcanal, Guadalcanal Province. On 24^th March 2014, the Commissioner of Lands approved the application.
9. On 20^th March 2015, the Claimant received an offer for the land and a total fee of $16,412.00 to be paid, which he paid.

This application under r 9.58.

10. The case of the Claimant is that upon reading the amended defense, perceived that the Defendant does not have a real prospect of defending the Claimant’s claim.
11. This perception was a result from what is stated in paragraph 3 and 5 of the amended defense which forms the basis for the Defendant’s defense. Specifically he was relying on three reasons. Firstly that he had occupied the land since 2008. Secondly, he was expecting that the alienated land be returned to the original landowners which is assumable he is one. And thirdly in paragraph 5 where he alleges fraud attesting that the letter of approval signed by Maelyn Lubesa was done by fraud.
12. It would be absurd to think and assert any return of land to the original landowners will be manifestly occasion. In fact it is quite a common agenda among Guadalcanal people that one day all alienated land will be returned to them. This has been the anticipation for decades now; when would it eventuate are but a dream, if not a myth.
13. Without no doubt the land being the subject of this litigation is but a crown land and is administered by the Commissioner of lands under his authority. The process to acquire title is laid down by the Land and Titles Act and had been fulfilled by the Claimant.
14. The act of occupation by the Defendant which he relies on is regarded as first in time or first in right. Alternatively he could be relying on the principle of acquisition of land by prescription for the period of 12 years pursuant to S. 224(1) of the Land and Titles Act.
15. In fact the Claimant had submitted his application for allocation first in time, 2 years before the Defendant asserted he occupied the land. At that time of application, the land was vacant and remains Crown land. This is not a case the Crown wishes to retrieve its land. Therefore, the occupation done by the Defendant initially was not permitted and was illegal.
16. The question whether the Defendant had occupied the land for 12 years cannot be ascertained because of no proper dates furnished. Furthermore, the Claimant commenced this proceeding on 18^th December 2019. Counting from 2008, the Defendant only occupy the land for less than 12 years.
17. The Defendant also highlighted as one of the grounds in defending the claim, that Maelie Lubasia had committed fraud in signing the approval letter.
18. The Counsel for the Claimant argues which I concur, that there is no evidence particularizing the allegation of fraud in the defense filed. Apparently, Maelie Lubasia must be an authorized officer in the Lands office to sign the approval letter.
19. I also noted that this transaction occurred before the amendments to the land and Titles Act on 12^th June 2014.
20. Further still, the Defendant did not file any application for an offer for the land. He merely occupied it as an initial act to acquire ownership. In deed that was not the process provided for under the Land and Titles Act to acquire fixed term estate own by the Crown. Therefore, it is not a valid way to allege fraud.
21. One way fraud can be pleaded is where another applicant to the same subject land was deprived of his right through decision marred by fraud. It did not occur in the current case. And the Defendant offers no evidence to proof.
22. Upon perusing the file I noted there was no sworn statement filed on behalf of the Defendant, supporting the defense or amended defense. The only sworn statement filed was in response to the application for default judgment. As such there is no evidence supporting the facts pleaded in the amended defense. As well, there is no response to this application until the issuant of the unless order.
23. The other allegation by the Defendant which I noted is that the grant instrument was not supposed to be sign by the Commissioner of Lands. He was the wrong person to sign. Unfortunately there was no other person suggested by the Defendant as the right person to sign the instrument.
24. I have perused the grant instrument of the FTE and the grantor as implicated therein was the Commissioner of Lands, a person with that title. Of course Maelie Lubasia cannot be regarded as a wrong person? He was the Officer in the Ministry of Lands and Housing; of course he must be authorized.
25. Finally, with the failure by the Defendant to file sworn statement in support of his defense or even amended defense, and his failure to file response to this application, and his none attendance and of his lawyer in this hearing, I must therefore grant the application for summary judgment against the Defendant. Amended defense filed by the Defendant is hereby dismissed.
26. Determination on the application for summary judgment is made in favour of the Claimant, therefore, not necessary to consider the second option as relief.

Orders:

1. Application for summary judgment granted. Amended defense filed by the Defendant is hereby dismissed.
2. The cost of hearing of this application is to be paid by the Defendant to the Claimant.

The Court.
Justice Rex Faukona.
Deputy Chief Justice.