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Kesaka v Poraiwai [2024] SBHC 147; HCSI-CC 586 of 2022 (8 November 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 586 of 2022

BETWEEN

BETTY KESAKA
Claimant

AND:

JOE PORAIWAI
First Defendant

AND:

ATTORNEY GENERAL
(representing the Commissioner of Lands)
Second Defendant

AND:

ATTORNEY GENERAL
(representing the Registrar of Titles)
Third Defendant

Date of Hearing: 15 October 2024
Date of Decision: 8 November 2024

Mr Lappy Hite for the Claimant/Cross Defendant
Mr Gregory Muaki for the 1^st Defendant/Cross Claimant
Ms Freliz Fakari’i for the 2^nd and 3^rd Defendants (No Appearance)

RULING ON APPLICATION TO SET ASIDE DEFAULT JUDGMENT, TO AMEND CLAIM AND TO JOIN A PARTY Bird PJ:

1. The original claim between the parties to this proceeding is for a relief of easement. Ms Betty Kesaka is the widow of the late Philemon Kesaka. The late Philemon was a former employee of Levers Solomon Limited (LSL). At the material time, LSL was the registered owner of land compromised in PN 192-004-885. Upon his retirement, LSL offered to sell that land to him.
2. In about 2008, sub-division of various land blocks belonging to LSL was carried out. An alleged verbal offer over the land was made by LSL to Ms Kesaka in about 2009. On 10 July 2013, a deposit of $12,000.00 was paid to LSL on the offer. The formalities and transfer of the land was not facilitated to date. The late Philemon Kesaka nor his widow has title.
3. From the 2008 sub-division of lands comprised in PN 192-004-536 to 590, one of the parcel numbers created was PN 192-004-882. On 28 January 2015, the Fixed Term Estate in respect of that land was registered in the name of Joseph Poraiwai. The consideration paid by Mr Poraiwai for the transfer was $97,000.00.
4. It is asserted that the boundary of PN 192-004-882 has encroached into PN 192-004-885. Some of the fixtures and properties belonging to Ms Kesaka are now located inside PN 192-004-882. Those fixtures and properties included a septic tank, soak way and tanks. There are also other properties which were not named. She therefore claims an easement over the area where the properties are located.
5. Mr Poraiwai filed a defence and counter-claim. He sought various reliefs including eviction, permanent injunction and damages. He has obtained title to the land upon payment of valuable consideration. He should be entitled to the quiet enjoyment of his land. About 75% of his land is occupied by properties belonging to Ms Kesaka and her family. She does not even possess valid title over PN 192-004-885.
6. Upon his enquiry with LSL, it was confirmed to him that there was no mistake in the sub-division process done in 2008. The house that Ms Kesaka is occupying with her family has been condemned. It is unfit for human habitation and it should have been demolished and sold to interested buyers. Upon that basis, Mr Poraiwai says that the right person that Ms Kesaka can have legal recourse against should be LSL.
7. He further says that Ms Kesaka and her family members have been intimidating and have grossly interfered with his efforts to develop PN 192-004-882. He also says that almost 75% of his land is in the control and occupation of Ms Kesaka and her family members. He is unable to make full use of his land.
8. Mr Poraiwai’s defence and counter-claim was filed on 21 February 2023. From that date Ms Kesaka has not filed a defence. Consequently, an application for default judgment was filed on 21 June 2023. That application was listed for hearing on 18 August 2023. On the hearing date, the application was conceded to by the parties and default judgment was granted in terms of the reliefs sought in the counter-claim.
9. On 20 November 2023, two sets of applications were filed. The first seeks an order to set aside default judgment. The other application seeks orders to amend the claim and to add a party. In the supporting sworn statement, Ms Kesaka raised complaints against the conduct of her previous counsel. Upon that basis, I have directed that the lawyer is served with the applications and supporting sworn statement to give him an opportunity to respond. The lawyer filed his sworn statement on 30 July 2024. Hearing of the applications was conducted on 15 October 2024.

1st application

10. The substantive application before me for determination is the application to set aside default judgment. If this application is granted then I will be inclined to deal with the second application. It is noted that the application of the Claimant/Cross Defendant does not cite the relevant rule relied upon. It is not inscribed in the application, in written submission and not even mentioned by counsel during hearing.
11. I have assistance from submission of counsel for Mr Poraiwai on the relevant law. The applicable rules are 9.52 to 9.56 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR). The issues for me to determine under the rules are:
    1. Has the Counter Defendant shown reasonable cause for the delay in defending the claim?;
    2. Does the Cross Defendant has a meritorious defence?; and
    3. Will there be any prejudice to the 1^st Defendant/Cross Claimant in setting aside the order that cannot be rectified by a cost order?

Argument for Ms Kesaka

12. Ms Kesaka says that she has shown reasonable cause for the delay in filing her defence. She was not informed by her former lawyer. She did not know that Mr Poraiwai filed a counter-claim against her. She only knew when a copy of the default judgment was served on her by police sometime later.
13. Ms Kesaka also say that she has a meritorious defence to the counter-claim. I have perused her draft defence exhibited to her sworn statement. Her defences as I see it, hinges on an alleged oral agreement between LSL and her late husband. I have perused exhibit BK1 and BK2 annexed to her sworn statement filed on 22 December 2022. BK1 is a copy of a letter acknowledging payment of the $12,000.00. BK2 is a copy of a letter in respect of the alleged allocation to Ms Kesaka.
14. Upon the above stated documents, Ms Kesaka says that she has a meritorious defence. She is entitled to remain on the property. The property that was offered to her and her late husband in about 2009 included part of PN 192-004-882.
15. Ms Kesaka further says that Mr Poraiwai could not be prejudiced if the court sets aside the default judgment. A cost order is able to remedy any prejudice to him.

Argument for Mr Poraiwai

16. On the contrary, Mr Poraiwai says that Ms Kesaka has not shown reasonable cause in not defending his claim. She is blaming her previous lawyer as the cause of the delay. That reason is not sufficient.
17. Mr Poraiwai also says that Ms Kesaka’s draft defence does not constitute a meritorious defence. He says that the fact that the land was previously offered to her and her husband together with a payment of $12,000.00 does not contain a meritorious defence to his claim. It is further the case for Mr Poraiwai that substantial prejudice will be occasioned to him if default judgment is set aside. The prejudice caused to him cannot be remedied by way of a cost order.

Discussion

18. Mr Poraiwai’s counter-claim is for eviction, injunction and damages against Ms Kesaka. He is the registered owner of PN 192-004-882. Ms Kesaka asserts that she and her late husband were offered by LSL to buy PN 192-004-885. That offer has never been facilitated nor was it concluded by LSL.
19. Since registration, Mr Poraiwai has been attempting to develop the land. Apart from building a structure on a portion of the land, about 75% of the land is currently under the control and occupation of Ms Kesaka and her family. He has since been unable to carry out further works on his land. Negotiations between the parties have proved futile and there has been no resolution to date.
20. Having perused and noted Ms Kesaka’s draft defence, what is raised is not an issue for Mr Poraiwai. They are issues for LSL and the Attorney General to answer to. I have also perused and noted the contents of the various sworn statement by Ms Kesaka. She alleges breach of agreement by LSL. I am of the view that exhibits BK1 and BK2 relied upon by her, have fallen short of an agreement for sale of PN 192-004-885 to her and her late husband. In any event, she can only rely on an agreement that is duly stamped under section 9 of the Stamp Duties Act (cap 126). There is also no written agreement between them.
21. Ms Kesaka also says that the sub-division in 2008 caused an overlap. As a result of the overlap, most of her family properties are now located in PN 192-004-882. This is also an issue for LSL and the Attorney General to respond to. In any event, that is contrary to the content of the title register. PN 192-004-882 was created from PN 192-004-536 to 590. It was not created under PN 192-004-558.
22. I have also noted that Ms Kesaka does not hold any registered title over PN 192-004-885. She is living on the property because of the arrangement between her late husband, herself and LSL. Ms Kesaka’s properties in that land comprised of about 75% of it. That would mean that Mr Poraiwai can only enjoy about 25% of the same. The land was transferred to him upon payment of valuable consideration.
23. There is no allegation against Mr Poraiwai in the draft defence that he has committed any wrong. From the relevant documents and the evidence before me, he is an innocent purchaser to the whole process. He has paid valuable consideration for the land. His interest is protected under section 110 of the Land and Titles Act (cap 133). I can also see that Ms Kesaka’s draft defence does not plead any viable relief under the various provisions of the Act.
24. Ms Kesaka puts blame on her previous lawyer for not filing her defence to the counter-claim. In that context, I have perused the sworn statement of Mr Joseph Iroga. I have noted that Ms Kesaka was represented through her son Mr Anderson Kesaka. He has difficulty in contacting and getting instructions from Ms Kesaka through her son.
25. On that note, I also have perused the contents of her various sworn statements. I have not seen therein whether or not she has made attempts to see Mr Iroga at his office to follow up on her case. She also did not state whether or not she has contacted or have tried to contact Mr Iroga. That evidence is missing. It is therefore possible that she never checked on Mr Iroga to follow up and to find out the progress of her case. I am of the view that it is as much as her duty to also follow up with her lawyer on the progress of her case.
26. The Attorney General did not make any appearance on the hearing date. They have filed their response in respect of the applications. They say that Ms Kesaka’s claim was not served on them pursuant to rule 6.5 of the CPR and is ineffective. In any event the counter-claim is merely against Ms Kesaka. There is no allegation against them. They are just a nominal party.
27. On the requirement of prejudice, Ms Kesaka says that there will be no prejudice to the other parties to this case. Whatever prejudice that may be occasioned could be rectified by way of cost orders.
28. This proceeding was filed in 2022. Parties have tried to negotiate to try and resolve it. That was not possible. An application for default judgment was properly filed. On the date of hearing, the application for default judgment was consented to by the parties. Default judgment was hereby entered upon that basis.
29. I have perused and noted the contents of Ms Kesaka’s sworn statement filed on 20 November 2023 in support of her current application. On paragraph 7, she stated that she was advised her claim lacks merit, misconstrued and not supported in the statement of case. There is nothing in that sworn statement to say that she did not consent to the application for default judgment.
30. Mr Poraiwai has been trying to develop his land. His efforts were hampered by Ms Kesaka and members of her family. He can only construct a structure on the remaining 25% of his land. He is continuing to face interferences from Ms Kesaka.
31. Upon the above basis, I am of the view that Mr Poraiwai will be greatly prejudiced if default judgment in his favour is set aside. Judgment has been entered in his favour and he is entitled to enjoy the fruit of that judgment.
32. Having discussed all of the requirements that I must be satisfied with in an application to set aside default judgment, I hereby conclude that Ms Kesaka has not shown reasonable cause for the delay in filing a defence to Mr Poraiwai’s counter claim. There has been a delay of about 9 months to the filing of her application.
33. In perusing and noting the contents of her draft defence, I am also not satisfied that she has a meritorious defence to Mr Poraiwai’s counter-claim. She could have had a claim against LSL and the Attorney General but LSL is not even a party.
34. Finally and as discussed above, I am further not satisfied that Mr Poraiwai will not be prejudiced in the setting aside of the default judgment in his favour. In effect, he has been greatly prejudiced since on or about 2015 when title of the land was registered in his name. I hereby refuse Ms Kesaka’s application to set aside default judgment filed on 21 November 2023.
35. In refusing that application, I am not inclined to discuss and determine the subsequent application to amend and to add a party. In passing, I wish to state that an amendment of the nature that Ms Kesaka is contemplating, will have to be a very substantial amendment that will not be allowed by the CPR.
36. A case decided by this court was cited by counsel in support. I have perused the case between Levers Solomons Ltd v Leni [2008] SBHC 110; HCSI-CC 349 of 2007 and I am of the view that the decision can be distinguished from this case. In that case, the court allowed the application to set aside default judgment and further order to join the Attorney General and an amendment of the claim.
37. In this case, the application for default judgment is refused. Consequently, application to join a party and for an amendment are no longer issues for me to deal with. I hereby order as follows:
    1. Ms Kesaka’s application to set aside default judgment is hereby refused;
    2. I refuse to determine the application to join a party and for amendment;
    3. Cost is against Ms Kesaka.

THE COURT
Justice Maelyn Bird
Puisne Judge