Dua v Kwan [2023] SBHC 122; HCSI-CC 579 of 2022 (27 October 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Dua v Kwan
Citation:
Date of decision:	27 October 2023
Parties:	Bako Dua v William Kwan
Date of hearing:	3 October 2023
Court file number(s):	579 of 2022
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	In that regard, I dismiss the Amended Claim of the Claimant filed on 9 March 2023. In any event and in view of what I have stated in paragraph 17 above, the Claimant is also not entitled to any of the reliefs sought in his Amended Claim. I hereby order that this proceeding be dismissed with cost.
Representation:	Mr Celestine Solosaia for the Claimant Mr Radclyffe for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Land and Titles Act [cap 133] S 224 and 225, S 136, S 2 (1), S 114
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 579 of 2022

BETWEEN

BAKO DUA
Claimant

AND:

WILLIAM KWAN
Defendant

Date of Hearing: 3 October 2023
Date of Decision: 27 October 2023

Mr Celestine Solosaia for the Claimant
Mr Radclyffe A for the Defendant

JUDGMENT

Bird PJ:

1. The Claimant in this proceeding has filed an Amended Category C Claim seeking various declaratory and consequential orders namely:
   1. A declaratory order that by virtue of rule 3.1 of the Solomon Islands (Civil Procedure) Rules 2007, the Claimant was not a party in the High Court Civil Case 475 of 2018 filed on 29 November 2018;
   2. A declaratory order that by not complying with r. 3.1, 6.1, 6.4, 6.32, 6.33, 6.34, the Claimant was denied the right to defend himself and or right to natural justice;
   3. Consequent upon orders 1 and 2, a declaratory order that the default judgment made on 4 July 2019 is not binding on the Claimant, hence ineffective;
   4. A declaratory order that by virtue of rule 3.40 and 3.41, the notice of eviction served on the Claimant on 2 September 2020 is not binding hence unenforceable;
   5. Consequent upon order 4, a declaratory order that the forceful execution of the eviction order on the Claimant’s property on part of P/N 191-004-217 is ultra vires hence unlawful;
   6. Consequent upon orders 1, 2, 3, 4 and 5, an order that the Defendant pay damages to the Claimant for financial loss suffered, to be assessed;
   7. Cost of this proceeding;
   8. Any other orders the court deems fit to make.
2. The case for the Defendant on the other hand is simple. First and foremost is the issue on whether the Claimant is entitled to challenge the decision of the court in CC475 of 2018 in this proceeding. This proceeding should therefore be dismissed. Secondly is that the Defendant is the FTE holder in parcel number 192-004-217 having purchased it from Urmic Investment limited for a consideration of $20,000.00. The FTE was registered in the Defendant’s name on 15 January 2007. The defendant is a trespasser on the land and is not entitled to the reliefs sought.

The facts

3. The facts of this case is that the Defendant is the FTE holder of parcel number 192-004-217 since 15 January 2007. A number of people had squatted on that land for an unspecified period of time. One such person is the current Claimant who had occupied part of the subject land since about 2006 upon invitation from one Jack Maefai. The subject land was previously registered in the name of Urmic Investment Limited on 25 October 1999 having purchased it from Levers Solomons Limited for a consideration of $72,000.00.
4. The Claimant had enquired from the office of the Commissioner of Lands about the said land and was informed that the land has not been developed for a long period of time and could be subjected to forfeiture process. Upon that information, the Claimant made a written application to the then Commissioner of Lands registering his interest to acquire that land. A letter of approval of application for vacant land was given to the Claimant by the then Commissioner of Lands on 20 September 2012. The Claimant then started to develop the land that had been occupying and constructed several buildings therein.
5. On 29 November 2018, the Defendant filed a Category C Claim against Paul Nabenyi & 26 others in CC 475 of 2018. Default judgment was entered on 4 July 2019. Enforcement order was made on 14 August 2020 and Notice of Eviction was further made on 1 September 2020. The Claimant in this proceeding was not one of the named parties to CC475 of 2018.
6. On 15 September 2020, the Claimant filed three applications being for joinder, to set aside default judgment and to stay enforcement order. On 29 March 2021, the court refused the application for joinder. At that stage, there was no mention of the other two applications because the enforcement and eviction orders had already been duly enforced.
7. Apart from the above process, and on 5 November 2020, the Defendant filed a claim against the Claimant in Civil Case 586 of 2020. The Claimant filed a response to that claim on 6 November 2020. That claim was discontinued by the Defendant on 11 November 2020. That notice of discontinuance had led to the filing of the Claimant’s original claim in this proceeding on 19 December 2022. An amended claim was filed on 9 March 2023 for the orders sought in paragraph 1 of this ruling.
8. Having stated the facts as I see them, I will now discuss the issues in this case. The first issue that I must consider is whether or not this court has the power and the right to interfere with previous court proceeding and court orders in CC475/18. Secondly would be, what right does the Claimant have (if any) against the right of a registered owner of land?

The Claimant’s case

9. The issues been stated, I will now discuss the case for the Claimant. Mr Solosaia, of counsel relies upon the Claimant’s sworn statement filed on 16 December 2022, the Court Book filed on 21 June 2023 and the oral evidence adduced in court by the Claimant. The essence of the case for the Claimant is that he had initially occupied the subject land in about 2006. He was invited onto the land by one Jack Maefai. He used and paid rent for the use of a shed within the area to Mr Maefai. The Claimant then took full occupation of the area in about 2012 and constructed buildings in the land. The action of the Claimant came about when he was advised by the then Commissioner of Lands that the land was not developed for a long period of time and could be subjected to forfeiture. See annexure in page 29 of the “Bundle of Court Documents”. The Claimant made an application to the Commissioner on 25 June 2014 in respect of that land. See page 36 of the “Bundle of Court Documents”. Follow up letters were made on 9 January 2017, 16 January 2017, 2 May 2018 and 26 February 2019. See pages 37 to 41 of the same court book. The Claimant then asserted that he was given a purported offer letter by the then Commissioner of Lands on 20 September 2012. See page 70 of Court Book.
10. It is therefore the case for the Claimant that he had the right to remain on the land through adverse possession with a combined effect of sections 224 and 225 of the Land and Titles Act (cap 133). The Claimant also relies upon s. 114 of the said Act as to the issue of overriding interest. It is also the case for the Claimant that he had acquired right over the said land through his actual possession of the land because he was in the process of acquiring it through the forfeiture process under s. 136 of the Act.
11. Upon the above scenario, it is argued by Mr Solosaia of counsel that the Claimant was not given the opportunity to be heard in CC 475/18. He was an occupant of a plot of land within parcel number 192-004-217 since 2006 but was not named as a party to that case. He argues that as a result, he was denied his right to natural justice.
12. On behalf of the Defendant, Mr Radclyffe of counsel submits that this court is not entitled to enquire into the conduct of CC475/18. The Claimant’s right in that case could have been exercised by him in that case or by way of an appeal. The Claimant had failed to do both or either of them and therefore this court has no jurisdiction to deal with this case at first instance.
13. It is further the case for the Defendant that the Defendant is the registered owner of the said land. At no time did the Claimant sought permission from him to develop the said land. Mr Maefai who gave him permission to use the land has no right to do so. The forfeiture process under s. 136 of the LTA was not done by the Commissioner of Lands and therefore the Claimant could not rely upon that argument.
14. It is also submitted by counsel that the Claimant is a trespasser on the land. That fact is conceded by Mr Solosaia for the Claimant. It is further submitted by Mr Radclyffe that the Claimant’s claim for damages could not succeed because the demolition of the building belonging to the Claimant was done as part of the judicial process in CC475/18. It is further argued that the properties complained of by the Claimant are part of the land and they belonged to the Defendant by virtue of the definition of land in section 2 (1) of the LTA and I set out that provision:
    • s. 2 (1)“land” includes land covered by water, all things growing on land and buildings and other things permanently fixed to land but does not include any minerals (including oils and gases) or any substance in or under land which are of a kind ordinarily worked for removal by underground or surface working.
15. So in effect, the buildings allegedly demolished under CC475/18 belonged to the Defendant by virtue of s. 2 (1) of the LTA and therefore the Claimant is not entitled to damages. It is further the case for the Defendant that notwithstanding the fact that the Claimant was not named in CC475/18, the Enforcement Order on page 33 of the Court Book also include the Claimant. That order in part states- “such other persons who occupy the land without the approval and authority of the Claimant/Judgement Creditor...” In light of the wording of the enforcement order, the Claimant at the material time was a person who occupied the land without the approval and authority of the Claimant, the Defendant in this case.
16. Having discussed the case for the Claimant and the Defendant in this case, one thing is clear. The Defendant in this case is the registered owner of parcel number 192-004-217. The Claimant had lived and developed the land without the permission and authority of the Defendant. He had therefore entered, lived and developed the said land at his own risk.
17. I have also had the opportunity to peruse the alleged letter of approval by the Commissioner of Lands to the Claimant on page 70 of the Court Book. That letter is dated 20 September 2012 and it is an approval of application for vacant land – Koloale. I am also minded to note that the first application of the Claimant over the Henderson land also known as parcel number 192-004-217 was the Claimant’s letter of 25 June 2014 at page 36 of the Bundle of Court Documents. These two letter do not correspond to each other. The approval of application for vacant land is in respect of a Koloale land and it was written prior to the Claimant’s first application for the Henderson land. This is indicative of the Claimant’s intention to mislead the court in this case.
18. I am also minded to note that the forfeiture process under s. 136 of the LTA has never been commenced by the Commissioner of Lands and the Claimant is not entitled to rely on that forfeiture process in this case.
19. I now turn to the issue as to whether or not this court is entitled to interfere into CC 475/18. In that case, the Claimant was not a party. He made an application to be joined as a party in CC 475/18 but his application was refused by the court on 29 March 2021. His right then at that stage was to lodge an appeal to the Court of Appeal against the ruling of this court. He had failed to utilise his right of appeal and instead filed this proceeding and complaining about the issues raised in CC475/18.
20. I can say that I do not have the jurisdiction to enquire into the conduct of CC475/18 but the Court of Appeal in their appellate jurisdiction. In that regard, I dismiss the Amended Claim of the Claimant filed on 9 March 2023. In any event and in view of what I have stated in paragraph 17 above, the Claimant is also not entitled to any of the reliefs sought in his Amended Claim. I hereby order that this proceeding be dismissed with cost.

THE COURT
Justice Maelyn Bird
Puisne Judge