Maenu'u v Maefiti [2024] SBHC 12; HCSI-CC 544 of 2020 (28 February 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Maenu’u v Maefiti
Citation:
Date of decision:	28 February 2024
Parties:	Henry Suia Maenu’u, Lency Maenu’u, Ahardyson Lekolo Maenu’u v Jack Maefiti, Mary Kokosi and others
Date of hearing:	On the Papers
Court file number(s):	544 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. Judgment is entered for the Claimants. 2. The Claimants are entitled to possession of PE 192-066-39, PE 192-066-40, PE 192-066-41, PE 192 -066-42, PE 192-066-43, PE 192-066-50 and PE 192-51 situated at Tasahe, Honiara. 3. The Defendants, their servants, agents, relatives, friends, family members and or invitees currently occupying the lands set out in order 2 under the Defendant purported authority vacate the properties and remove their chattels and personal effects from such properties within 30 days of the delivery of this order. 4. The Defendants, their servants, agents relatives, friends, family members and /or invitees currently occupying the properties set out in order 2 under the purported authority of the Defendants, are permanently restrained from intimidating, preventing or obstructing the Claimants as title holders of the said lands and entitled to possession of the same. 5. The Defendants, their servants, agents, relative, friends, family members and/ or invitees currently occupying the properties set out in order 2 under the purported authority of the Defendants are permanently restrained from entering or re-entering the said properties after the expiry of 30 days of this order. 6. The Defendants are to pay the costs of the Claimants on an indemnity basis within 30 days of this order.
Representation:	Mr Kwana for the Claimants Mr H Fugui for the Defendants
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Court (Civil Procedure) Rule 2007, r9.64, r9.64 (a), Land and Titles Act S 110, S 229,
Cases cited:	Simon v Eagon Pacific Plantation Ltd [2018] SBCA 7

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 544 of 220

BETWEEN

HENRY SUIA MAENU’U, LENCY MAENU’U, AHARDYSON LEKOLO MAENU’U
Claimants

AND:

JACK MAEFITI, MARY KOKOSI AND OTHERS
Defendants

Date of Hearing: On the Papers
Date of Decision: 28 February 2024

Mr Kwana for the Claimants
Mr H Fugui for the Defendants

RULING

Lawry PJ

1. This is an application for summary judgment. The Claimants are the holders of the perpetual estates PE 192-066-39, PE 192-066-40, PE 192-066-41, PE 192 -066-42, PE 192-066-43, PE 192-066-50 and PE 192-066-51. These properties are situated in Tasahe. The Defendants have been occupying the premises without permission from the Claimants nor their father who previously hold the perpetual estates in those lands.
2. There is evidence that the Defendants have been asked to vacate the lands so that the holders of the perpetual estates can develop the lands. The Defendants have not done so.
3. The Defendants in their defence allege they moved on to the land in 2007 and 2008. They claim they have done so after making relevant arrangements with the customary landowners. The Defendants allege that that is the reason they did not vacate the land when given the warnings to do so. The most recent was the written warning sent by the lawyer for the Claimants in 2018.
4. Rule 9.64 of the Solomon Islands Court (Civil Procedure) Rules 2007 [“the Rules”] provides:
   • “9.64 If the court is satisfied that:
   • (a) the defendant has no arguable defence to the claim or part of the claim or that the there is no real prospect of the claim succeeding; and
   • (b) there is no need for a trial of the claim or that part of the claim; the court may:
   • (c) give summary judgment for the applicant; and
   • (d) if the court gives summary judgment for only part of the claim, give leave to defend the balance of the claim; and
   • (e) make any other orders the court thinks appropriate.”
5. Rule 9.64 (a) then requires the Claimant to show that the Defendant has no arguable defence.
6. The only defence put forward is that the Defendants allege that they have permission from the customary owners of the land. The problem with this is that the land is not customary land. It is registered land and registered in the names of one or other of the Claimants.
7. Section 110 of the Land and Tiles Act provides:
   • “110. The rights 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, and shall be held by the owner, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject-
   • (a) to the leases, charges and other encumbrances and to the conditions and restrictions (if any) affecting the interest, and shown or referred to in the land register or implied by this Act; and
   • (b) to such liabilities, rights and interests as affect the same and are declared by section 114 (which relates to overriding interests) not to require noting in the register:
   • Provided that nothing in this section shall be taken to relieve an owner from any duty or obligation to which he is subject as a trustee.”
8. It their submissions the Claimants referred to applications for rectification brought in reliance on section 229 of the Land and Titles Act. The Defendants’ defence makes no such claim for entitlement. Counsel referred to the Court of Appeal ruling in Simon v Eagon Pacific Plantation Limited [2018] SBCA 7. The Court said at paragraph 17.
   • “17. Counsel for the Respondent submits that this was not pleaded in the amended defence and counterclaim and should not be considered by this Court on this application for summary judgment nor by the High Court in determining the same. We note that submission based on the pleaded case for the Appellants but would proceed to note that, even if pleaded, which we agree it is not, it would not assist the Appellants in their defence given that any such rights were themselves extinguished by the Acquisition process which preceded the grant of the FTE to the Respondents.”
9. Any customary rights of the customary land owners ceased when the perpetual estate was granted. The customary land owners cased to have authority to grant permission to the Defendants to reside on the land once the land was registered a as a perpetual estate.
10. The Defendants have shown no basis on which they are lawfully on the land, nor does the defence filed show any basis.
11. This is one of these cases where there is no prospect of the defence succeeding and there no need for a trial of the claim. The Claimants are entitled to summary judgment.

Orders

1. Judgment is entered for the Claimants.
2. The Claimants are entitled to possession of PE 192-066-39, PE 192-066-40, PE 192-066-41, PE 192 -066-42, PE 192-066-43, PE 192-066-50 and PE 192-51 situated at Tasahe, Honiara.
3. The Defendants, their servants, agents, relatives, friends, family members and or invitees currently occupying the lands set out in order 2 under the Defendant purported authority vacate the properties and remove their chattels and personal effects from such properties within 30 days of the delivery of this order.
4. The Defendants, their servants, agents relatives, friends, family members and /or invitees currently occupying the properties set out in order 2 under the purported authority of the Defendants, are permanently restrained from intimidating, preventing or obstructing the Claimants as title holders of the said lands and entitled to possession of the same.
5. The Defendants, their servants, agents, relative, friends, family members and/ or invitees currently occupying the properties set out in order 2 under the purported authority of the Defendants are permanently restrained from entering or re-entering the said properties after the expiry of 30 days of this order.
6. The Defendants are to pay the costs of the Claimants on an indemnity basis within 30 days of this order.

By the Court
Hon. Justice Howard Lawry
Puisne Judge