Solo v Rigereta [2024] SBHC 28; HCSI-CC 545 of 2020 (14 March 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Solo v Rigereta
Citation:
Date of decision:	14 March 2024
Parties:	Francis Siomagela Solo and Joy S Saeni v Ri’i Regereta, Tuita Toata Laua and Doreen Laua
Date of hearing:	12 March 2024
Court file number(s):	545 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. Judgment is entered for the Claimants on the claim. 2. The counterclaim is dismissed. 3. Saul Siomagela is confirmed as the owner of the Fixed Term Estate 134-002-38. 4. The Court makes final orders as follows: a) That the Defendants, by themselves, relatives, agents, associates and or anyone authorised by them be restrained from intimidating, harassing, threatening, preventing and or obstructing the Claimants from commencing a construction work of commercial building in the land in Fixed Term Estate (FTE) in Parcel Number 134-002-38, situate in Maluu Station, North Malaita, Malaita Province. b) That the Claimants shall take complete occupation of land in Fixed Term Estate (FTE) in Parcel Number (PN) 134-002-38, situate in Maluu Station, North Malaita, Malaita Province, without the Defendants’ disturbance, intimidation, harassment, threat, prevention and or obstruction. c) Penal Notice is hereby attached to Order 4(a) above, that in the event that the d) Defendants, their relatives, agents, associates and or anyone authorised by them breach the said order, the police at Malu’u is empowered to conduct an arrest e) The Defendants are to pay the Claimants costs on an indemnity basis and if not agreed then to be taxed.
Representation:	Mr L Kwana for the Claimants No Appearance for the Defendants
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 545 of 2020

BETWEEN

FRANCIS SIOMAGELA SOLO AND JOY S SAENI
Claimants

AND:

RI’ISAU RIGERETA, TUITA TOATA LAUA AND DOREEN LAUA
Defendants

Date of Hearing: 12 march 2024
Date of Decision: 14 March 2024

Mr L Kwana for the Claimants
No Appearance for the Defendants

Lawry; PJ

Ruling

1. The claim in this matter seeks the following orders:

“ 1 .An order permanently restraining the Defendants, by themselves, relatives, agents, associates and or anyone authorised by them from intimidating, harassing, threatening, preventing and or obstructing the Claimants from commencing a construction work of a commercial building in the land in Fixed Term Estate (FTE) in Parcel Number (PN) 134-002-38, situate in Maluu Station, North Malaita, Malaita Province.

2. An order that the Claimants shall take complete occupation of land in Fixed Term Estate (FTE) in Parcel Number (PN) 134-002-38, situated in Maluu Station, North Malaita, Malaita Province, without the Defendants’ disturbance, intimidation, harassment, threat, prevention and or obstruction.
3. An order that Penal Notice be attached to order 1 above that in the event that Defendants breach the said order, police is empowered to conduct an arrest.
4. Costs on indemnity basis to be borne by Defendants.
5. Such further and other orders as the Court thinks fit to make in the circumstances.”
2. The land registered as the fixed term estate PN 134-002-38 in North Malaita is registered in the name of Saul Siomagela. The grant of the fixed term estate was for fifty years beginning on 1 January 1999.
3. The grant was from the Commissioner of Land and a premium for the grant was recorded as $1600.00. The rent is $200.00 a year.
4. The Claimants are the children of the grantee and hold a power of attorney to act on his behalf. The Claimants allege that when they have undertaken work on the land the Defendants have interfered with and prevented that work.
5. The defence filed in this case relates primarily to the perpetual estate 134-018-1. That block is shown on the materials annexed to the sworn statement of Tuita Toata (one of the Defendants) filed on 4 August 2022, as a block comprising. 0.0685 hectares and which is adjacent to the block FTE 134-002-38 which comprises 0.0491 hectares. Significantly they are separate blocks of land. They not the same land, as alleged by the defence. Whether the FTE 134-002-38 is within an area that was previously customary land is irrelevant. On the material before the Court the estate that is FTE 134-002-38 was held by the Commissioner of Lands who made the grant to Saul Siomagela on 3 April 2008.
6. On 12 June 2023 after hearing from counsel for the Claimants and counsel for the Defendants, the Court made orders in the following terms:
   • “UPON HEARING Lawrence Kwana of Counsel for the Claimants, Steven Waego of Counsel for the Defendants, IT IS HEREBY ORDERED AS FOLLOWS:
   1. The Defendants file and serve Amended Counter Claim by close of business on 31^st July 2023.
   2. The Claimants to file and serve Defence to Counter Claim by close of business on 31^st 2023.
   3. Counsels to appear for mention of the matter on 4^th August 2023.
   4. There are interim orders in terms of the reliefs sought in the Claim filed on 16^th October 2020 as follows:
      • (a) That the Defendants, by themselves, relatives, agents, associates and or anyone authorised by them be restrained from intimidating, harassing, threatening, preventing and or obstructing the Claimants from commencing a construction work of commercial building in the land in Fixed Term Estate (FTE) in Parcel Number (PN) 134-002-38, situate in Maluu Station, North Malaita, Malaita Province.
      • (b) That the Claimants shall take complete occupation of land in Fixed Term Estate (FTE) in Parcel Number (PN) 134-002-38, situate in Maluu Station, North Malaita, Malaita Province, without the Defendants’ disturbance, intimidation, harassment, threat, prevention and or obstruction.
      • (c) Penal Notice is hereby attached to Order 4(a) above, that in the event that the Defendants, their relatives, agents, associates and or anyone authorised by them breach the said order, the police at Maluu is empowered to conduct an arrest.
7. The Defendants did not comply with the first of those orders and still have not filed an amended counterclaim.
8. When the case came before the Court for mention on 1 November 2023 the Court recorded that the counter claim had not been amended. The Court directed that the trial would be heard on 12 March 2024 and that the Claimants prepare the Court book. The Court book was filed on 21 November 2023. The Claimants’ counsel confirmed in Court on 12 March 2024 that proposed agreed facts and issues have been sent to the Defendants’ counsel but no reply had been received.
9. At the trial counsel for the Claimant appeared with his witness available although no notice to cross examine had been received. None of the Defendants nor their counsel appeared. The Court made enquires of the Public Solicitor’s office and waited until 9:50am but there was no appearance for the Defendants.
10. Counsel for the Claimants sought final orders in terms of those made on 12 June 2023.
11. The Court has carefully considered the matters raised in the defence and counterclaim. The material relied on by the Defendants does not support the defence case but confirms that the fixed term estate is not the same land as the perpetual estate 134-018-1. The Defendants have put nothing before the Court to show that their counterclaim is not statute barred by the Limitation Act. They have had the opportunity to cross examine the Claimant Francis Siomagela Solo, but have not done so. They had the opportunity to be heard in opposition to the orders sought but did not appear to make submissions.
12. Had the claim sought damages this was a case that may well have justified damages being awarded. The Court is satisfied that judgment ought to be given in favour of the Claimants. This is also a case where the Defendants did not appear at trial. They were months late filing their defence, they did not file an amended counterclaim as directed and the evidence put forward does not support the defence case.
13. The Claimant is the owner of the fixed term estate and he and others claiming through him are entitled to use that estate without interference from the Defendants. This is clearly a case where indemnity costs are appropriate.

Orders

1. Judgment is entered for the Claimants on the claim.
2. The counterclaim is dismissed.
3. Saul Siomagela is confirmed as the owner of the Fixed Term Estate 134-002-38.
4. The Court makes final orders as follows:
   1. That the Defendants, by themselves, relatives, agents, associates and or anyone authorised by them be restrained from intimidating, harassing, threatening, preventing and or obstructing the Claimants from commencing a construction work of commercial building in the land in Fixed Term Estate (FTE) in Parcel Number 134-002-38, situate in Maluu Station, North Malaita, Malaita Province.
   2. That the Claimants shall take complete occupation of land in Fixed Term Estate (FTE) in Parcel Number (PN) 134-002-38, situate in Maluu Station, North Malaita, Malaita Province, without the Defendants’ disturbance, intimidation, harassment, threat, prevention and or obstruction.
   100. Penal Notice is hereby attached to Order 4(a) above, that in the event that the
   4. Defendants, their relatives, agents, associates and or anyone authorised by them breach the said order, the police at Malu’u is empowered to conduct an arrest
   5. The Defendants are to pay the Claimants costs on an indemnity basis and if not agreed then to be taxed.

By the Court
Hon. Justice Howard Lawry
Puisne Judge