Hatanga Ltd v Hanikouna [2024] SBHC 29; HCSI-CC 502 of 2021 (18 March 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Hatanga Ltd v Hanikouna
Citation:
Date of decision:	18 March 2024
Parties:	Hatanga Limited v Michael Hanikouna
Date of hearing:	6 October 2023
Court file number(s):	502 of 2021
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The application for judgment by default is granted. 2. The Defendant his family his servants agents or relative living under his authority are to deliver vacant possession of the perpetual Estate number 191-068-3 located at Kakabona to the Claimant within 30 days of the date of this order. 3. The Defendant his family, servants agents or relatives or any person residing on the land under the authority of the Defendant after 30 days of the date of this order, is to be removed from perpetual Estate 191-068-3. 4. Mesne profit and damages are to be assessed. 5. The Defendant is to pay the costs of the Claimant on the standard
Representation:	Mr B Upwe for the Claimants Mr R Dive for the Defendants
Catchwords:
Words and phrases:
Legislation cited:	Limitations Act S 9 (2), S 32 (2) Solomon Islands Courts (Civil Procedure) Rules 2007 r 5.37, r 9.18
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 502 of 2021

BETWEEN

HATANGA LIMITED
Claimant

AND:

MICHAEL HANIKOUNA
(On behalf of his Family)
Defendant

Date of Hearing: 6 October 2023
Date of Decision: 18 March 2024

Mr B Upwe for the claimants
Mr R Dive for the Defendants

Lawry; PJ

RULING

1. This is an application for judgment by default. The claim was served on the Defendant on 13 September 2021. In accordance with rule 5.37 of the Solomon Islands Courts (Civil Procedure) Rules 2007. He was required to have filed a defence within 28 days of that service. He did not do so.
2. On 19 October 2021 the Claimant filed an application for judgment by default, pursuant to rule 9.18 with supporting evidence from Alex Bartlett who deposed that he is the administrator and founder of the Claimant.
3. On 22 October 2021 the Defendant filed a sworn statement and a draft defence and counterclaim. He deposed that he had received a copy of the application for default judgment on 19 October 2021 and that the reason for not filing a defence was that he did not have the money to pay for representation. He said that he had been told that the Public Solicitor’s Office were limiting civil representation due to the shortage of lawyers. There is no evidence that he had sought assistance from the Public Solicitors’ Office or elsewhere before he was served with a copy of the application for judgment by default. He annexed a copy of a draft defence and counterclaim. On the evidence before the Court he has been repeatedly asked to vacate the property from at least May 2007.
4. He was sent a letter from the Claimant on 20 May 2007 which advised him that the land was owned by the Claimant and directing him to vacate the property. The Claimant had in fact owned the property for 10 years before that.
5. The Defendant admitted that he and his family are living on the property. In the defence he alleged that the land being parcel number 191-068-803 was obtained through fraud or mistake. No particulars of that allegation have been pleaded in the defence although allegations are made in the counterclaim.
6. He alleges that title has been transferred to the original owners and that the Claimant is only entitled to lease the land. No basis has been put forward as to why this may be so. The title makes it clear that the former joint owners sold the land to the Claimant for $100,000.00 in 1997. Section 112 of the Land and Titles Act permits the owners of a perpetual estate to dispose of the estate in any many he thinks fit. There has been nothing pleaded as to why the former owners could not transfer the estate to the Claimant.
7. The Defendant then relies on provisions of the Townsville Peace Agreement. That is not an agreement that has the status of law nor is it pleaded that the Claimant is a party to that agreement. This Court is required to adjudicate between the parties in accordance with the law. Finally, the Defendant pleads that the Directors and Shareholders are not from Guadalcanal. Presumably this must relate to the assertion set out in paragraph 3(iii) of the defence that the Townsville Peace Agreement provides that any acquisition or transaction of land on Guadalcanal by non-Guadalcanal persons prior to 1^st October 1998 shall not be occupied, developed, sold or disposed of subject to appointment of a Commission to enquire into the validity of land transactions prior to 1^st October 1998 as set out above the legislation relating to the ownership and occupation of land makes no such provision.
8. Although the document is headed defence and counterclaim, it sets out nothing that could be said to be a defence to the claim.
9. The counterclaim seeks an order for rectification of title and makes a claim against the Commissioner of Lands and the Registrar of Titles.
10. Section 9 (2) of the Limitations Act provides:
    • “9.(2) No action shall be brought, nor any arbitration shall be commenced by any other person to recover any land after the expiration of twelve years from the date on which the cause of action accrued to him or, if it accrued to some person through whom he claims to that person:”
11. The cause of action, if there is one, accrued from the date of the purchase by the Claimant in 1997. Putting to one side the issue of fraud and mistake any claim as alleged needed to be brought within 12 years of 1997 that is by 2009.
12. Where there is an allegation of fraud or mistake as is pleaded, section 32(2) of the Limitations Act must be considered. That provides as follows:
    • “(2). Subject to subsection (4)
    • (a) Where a claim in an action or arbitration is based on fraud of the defendant; or
    • (b) Where a claim in an action or arbitration is based on any fact relevant to the plaintiffs cause of action which has been deliberately concealed from him by the defendant, or
    • (c) Where a claim in an action or arbitration is based on a relief from the consequences of a mistake.
    • The prescribed period for such action or arbitration, as the cease may be, shall not begin to run until the plaintiff has discovered such fraud, concealment or mistake, or could with reasonable diligence have discovered it.”
13. There is therefore an extension of time in some cases when fraud or mistake is alleged so that time does not begin to run until a claimant has discovered the fraud or could with due diligence have discovered it. The counterclaim does not plead that the Defendant (counterclaim Claimant) did not know of the transfer in 1997. On any view of the facts he must have known of the transfer at some point between 1997 and May 2007. If he wished to bring the claim he needed to do so before May 2019 and set out the evidence to show that he could not have known by due diligence that the property had been transferred. He has not done so.
14. If the Court were to allow the defence and counterclaim to be received both the defence and counterclaim could need to be struck out for the reasons set out above.
15. In these circumstances the application for default judgment in favour of the Claimant is granted and the proposed counterclaim is struck out as being out of time.

Orders

1. The application for judgment by default is granted.
2. The Defendant his family his servants agents or relative living under his authority are to deliver vacant possession of the perpetual Estate number 191-068-3 located at Kakabona to the Claimant within 30 days of the date of this order.
3. The Defendant his family, servants agents or relatives or any person residing on the land under the authority of the Defendant after 30 days of the date of this order, is to be removed from perpetual Estate 191-068-3.
4. Mesne profit and damages are to be assessed.
5. The Defendant is to pay the costs of the Claimant on the standard basis.

By the Court
Hon. Justice Howard Lawry
Puisne Judge