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Sade v Dettke [2017] SBCA 16; SICOA-CAC 40 of 2016 (13 October 2017)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. This appeal concerns three parcels of registered land at Kesao in West Guadalcanal; numbers 190-008-7, 190-008-8 and 190-008-10.
   
2. The respondent purchased the perpetual estate in those lands from five named trustees of the Haubata tribe for a payment of $30,000 and the Register of Perpetual Estates shows that they were all transferred to her on 15 February 2013.
   
3. However the appellant’s family were living on lot 10 and cultivating lots 7 and 8 and so, on 25 April 2013, the respondent’s solicitor sent a notice to the appellant to vacate the land and remove all properties and assets within 20 days. The appellant continued to occupy the land and so another letter was sent on 29 July 2015 warning them that application was to be made for an eviction notice.
   
4. The appellant’s family continued to use and occupy the land and so the respondent filed a Category C claim in the High Court seeking declarations that the respondent was the lawful, registered owner and that the appellant and his family were trespassing. Associated orders were sought for vacant possession and an injunction. No response or defence was filed and judgment in default was ordered on 7 October 2016.
   
5. On 28 October 2016 the appellant filed application to set the default judgment aside. It was heard on 23 November 2016 and, in an extempore ruling, the learned judge dismissed the application. Notice of appeal from that decision was filed on 30 December 2016.
   
6. The land at Kesao was part of land held by the Diocese of Honiara on a fixed term estate for 75 years from the 1 January 1978. The church decided to give the land to the local Haubata tribe and the fixed term estate was transferred to five trustees of that tribe in 1994. It appears the appellant’s family were already living on this land in Kesao and, in fact, a caveat had been entered by the appellants father on the Fixed Term Estate Register in 1991 some years prior to the transfer. The Haubata tribe acquired the perpetual title to the land from the Commissioner of Lands in 1994 and it was entered in the Register in the names of five trustees, three of whom were the same as those in the Fixed Term Estate register.
   
7. The appellant explains that his family had been living elsewhere on Guadalcanal and came to Kesao some time after 1978. On their arrival, they presented five chupu to the Haubata tribal leaders in order to be integrated back into the tribe. As a result, the tribal leaders allocated them the land in Kesao where they have lived for thirty years.
   
8. When the respondent purchased the perpetual title to the land in 2013, three of the trustees had died and it was sold by the two who were still alive.
   
9. Mr Tegavota, for the appellant, submitted that the actual occupation by the appellant’s family for thirty years constitutes an overriding interest under section 114 (g) of the Land and Titles Act which provides:
   

“114. The owner of a registered interest in land shall hold such interest subject to such of the following overriding interests as may, for the time being, subsist and affect the same, without their being noted on the register - ...

(g) the rights of a person in actual occupation of the land”

10. The appellant claimed a right to possession under custom but throughout the thirty years he had occupied the land, it was registered land. His claim under custom could not and, we are satisfied, did not amount to an overriding interest under section 114(g). The respondent is a purchaser for value and was the owner of the land as stated in the Register of Perpetual Estates. The appellant could not rely on an interest based solely on a claim of customary right.
    
11. When considering an application to set aside default judgment under Rule 9.54 the court must consider the nature of the defence and the real prospect of success should the application be granted. In the present case the learned judge correctly stated the proper approach to such an application:
    

“The question whether or not to set aside the judgment goes to the weight of the claim for continued occupation and the right of possession of registered land, contrary to that of the registered owner. The issue of delay has been explained. I must also, on the evidence adduced by the applicants to set aside the judgment, consider the prospects of success.”

12. Having considered those matters, he concluded:
    

“While [the applicants] have been residing on the subject parcels for some 30 years, the land parcels were sold by the perpetual estate owners in 2013 and the claimant has become by transfer for valuable consideration, the registered owner. No disclosed rights to continued occupation by those claimants to set aside the judgment appear from the statement of Francis Sade, apart from an assertion of a ‘Meritorious defence’; while he states that the three fixed term estate parcels are owned by the Haubata Tribe, the evidence of the Register of Lands is to the contrary ...

No rights have been disclosed, (apart from a claim to occupy customary land) in terms of section 114 (g) sufficient to oust the right of possession by the registered owner. No good defence on the merits has been shown.

In terms of the Land and Titles Act, in respect of registered land, no persons shall have rights unless expressly provided for and here, following sale in 2013, the right claimed under section 114 (g) is not made out. The occupier’s right may be one in custom against the tribal members, following the sale of the land from under them, but no better claim to resist the claim for possession by the registered owner has been shown. The application must fail and is dismissed. The claimant shall have an order for possession.’’

13. We agree with the judge’s conclusion and the appeal must be dismissed with costs to be assessed if not agreed.
    

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Goldsbrough P

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Ward JA
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Hansen JA