Year v Saumata [2017] SBMC 12; Civil Case 135 of 2016 (17 March 2017)

IN THE CENTRAL MAGISTRATE’S COURT )
OF SOLOMON ISLANDS )
Civil Jurisdiction

Civil Case No. 135 of 2016

BETWEEN: BENJAMIN RAKAFIA

NEW YEAR APPLICANT

AND: GIDEON SAUMATA RESPONDENT

Date of Hearing: March 2 and 6, 2017
Date of Ruling: March 17, 2017

Mr. M. S. Tongarutu for the Applicant
Mr. R. Tovosia for the Respondent

RULING ON APPLICATION TO REINSTATE
AN EARLIER INTERLOCUTORY ORDER

1. Following the ruling on the application for summary judgment and dismissal of the counterclaim, the claimant now applies to reinstate an earlier interim order dated 17^th June 2016 which was set aside by another subsequent interim order issued on 23^rd June 2016. That order is for the respondent and his family to deliver vacant possession of the residential property to the applicant.
   
2. Since the inception of the claim, the respondent has been occupying the property and is now in a dilapidated state, in need of repair.
   
3. The applicant based his application on the merit of the defence and the counterclaim. He believes that the respondent’s defence and counterclaim even if succeed will only entitle him for reimbursement of the money he allegedly assisted the applicant for the purchase of the property, but not for possession of the property. The non-existence of any written agreement between the disputing parties or a lien over the property makes it hard for the respondent’s case to survive any change of possession of the property even if the case is decided in his favor. Against the background of the defence and counterclaim, the applicant argues that there is no point for the respondent to continue to occupy the property but, what he ought to do now is to deliver vacant possession of the property to the applicant.
   
4. The respondent in response argued that there was no application for reinstatement of the earlier order in the written application^[1] and thus, no relief was sought in the application. Further, the respondent also argued that the court does not have any power to reinstate its earlier order already set aside and therefore, the application to revive that order is an abuse of the court process. Therefore, as says, by the respondent, the application should be dismissed with costs.
   
5. I think the issue to this case is straightforward and that is; whether the court can reinstate its earlier order which was set aside by a subsequent order during the course of the proceeding.
   
6. I have combed the Solomon Islands (Civil Procedure Rules) 2007 (“Rule”) to try and find whether there is any provision in the Rule to cater for this type of application. Unfortunately, I am unable to find one. Unlike an application to reinstate claim^[2], or reinstatement of application which was struck out^[3] and setting aside orders^[4], the Rule is silent on whether the court may reinstate an earlier interlocutory order as sought in the present application. There might be one which if pointed out by counsels will be of great assistance to the court.
   
7. This uncertainty or difficulty was exacerbated by failure of counsels to assist the court with any authority that is on point for this application.
   
8. Rule 1.11 empowers the court to give whatever directions that are necessary to ensure the matter is determined justly in a situation where no provision of the Rule applies. Rule 1.14 and 1.15 provides that the court may in the interest of justice dispense with compliance or full compliance with the rules at any time and whatever direction or order the court makes that is inconsistent with the rules will prevail in the proceeding.
   
9. At present, the legal title to this property is vested in the applicant. The title to this property was not challenged in the defence and the counterclaim but only for damages to the financial loss allegedly incurred by the respondent for assisting the applicant to purchase the property under consideration. Even if the respondent succeeds in this case, he will not have possession of the property but only damages for the alleged loss he suffered as a result of the applicant’s conduct.
   
10. If that is the direction where the respondent’s relief is tilted towards then, why continue to occupy the applicant’s property when his relief will be resolved by way of damages and costs for the financial loss in the event he succeeds.
    
11. It is my view that the occupation of the property is too remote and unrelated to the reliefs sought in the defence and the counterclaim. To continue to occupy the property is to usurp the right of the registered owner from the use and enjoyment of his property. The alleged invitation is denied and therefore, no longer exist at present. Therefore, to continue allow a non-title holder to occupy the property in light of the applicant’s refusal to allow such occupation is an improper course of conduct for the court to embark on. It will be seen as encouraging an unlawful occupation of the property taking into account the reliefs sought in the defence and the counterclaim.
    
12. I consider the application by the applicant is entrenched and accordingly accept his views. Despite the Rule is silent as to reinstatement of an earlier interlocutory order being set aside by a subsequent interlocutory order, I have decided to invoke Rules 1.11, 1.14 and 1.15 to determine this case justly in so far as the nature of the facts in issue in the claim, defence and counterclaim are concerned.
    

ORDERS OF THE COURT

13. It follows that upon hearing from both parties, I hereby issued the following Further Interlocutory Orders for parties compliance and adherence:
    
    1. That the Respondent and his family deliver vacant possession of the residential property on Fixed Term Estate on Lot 65 Parcel Number 191-001-021 to the Applicant.
       
    2. The Royal Solomon Islands Police is authorised to enforce these Orders.
       
    3. Penal Notice is attached if there is any breach to these Orders.
       
    4. No order for costs.
       

BY THE COURT

-------------------------------------------------------------------------

(Augustine Aulanga – Principal Magistrate)

---

^[1] Application filed on 3^rd March 2017
^[2] Osiramo v Aeounia [2016] SBHC 169
^[3] Saru v Maelimani [2013] SBHC 165
^[4] Rule 17.55 of the Solomon Islands (Civil Procedure Rules) 2007