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G D Development Ltd v Ura [2025] SBHC 56; HCSI-CC 367 of 2018 (1 May 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 367 of 2018

BETWEEN:

G.D DEVELOPMENT LIMITED
Claimant

AND

JACK URA AND FAMILY AND ALL
OCCUPANTS OF PARCEL NUMBER 192-004-174
(Including each of the persons named in the Schedule to the claim)
Defendants

Date Hearing: 28 September 2021
Date of Ruling: 1 May 2025

Mr J Wale for Claimant
Mr B Etomea for Defendants

Lawry; PJ

RULING

1. This is a ruling I understood had been delivered on my behalf in November 2021 when I was unavailable because of COVID – 19 restrictions. Last week the file was brought to my attention. I have reviewed the judgment and made some additions to it.
2. The Claimant is the registered owner of the Fixed Term Estate (FTE) PN192-004-174. In a claim filed on 10 October 2018 the Claimant alleged that the Defendants were trespassing on that land and had erected buildings on the land. The claim sought to recover possession and remove from the land those who were in occupation of it.
3. By the end of January 2019 the Defendants had failed to file any defence. The Claimant applied for judgment by default. The application was not heard in 2019. By July 2020 the Claimant applied for an injunction against the Defendants on the grounds that the Defendants had not moved off the land and continued to erect structures on the land. On 3 July 2020 the Court heard from both counsel and granted the injunction. The draft order filed on 3 July 2020 and perfected on 8 July 2020 read as follows:
   • “UPON HEARING Mr Kingmele of Counsel on behalf of the Claimant/Applicant and Mr Fugui on behalf of the Defendants
   • AND UPON READING THE Claimant’s Urgent Application for Injunction, Sworn Statement of Henry Kiriau, Certificate of Urgency and Undertaking As to Damages all filed on 23 June 2020
   • IT IS ORDERED THAT: -
   1. Until further order or final judgment (including judgment on any appeal), the Defendants, their family members, relatives, wantoks, servants, agents or invitees be restrained from: -
      • (a) Further erecting or constructing any structure or building on Parcel Number 192-004-174; and
      • (b) Causing further damage to the boundary fence or any other structure erected by the Claimant.
   2. A Penal Notice be attached to the order for the injunction in paragraph 1 hereof.
   3. The matter be adjourned to 9.30 am for hearing of the Claimant’s application for default judgment.
   4. Costs reserved”
4. On 10 July 2020 Jack Ura, one of the Defendants filed a sworn statement in opposition to the application for judgment be default. He alleged the Defendant have a strong defence. He alleged another civil case CCN 104 of 2017 would have a bearing on the case such that he would like the Court to consider consolidating that case with this one.
5. He then deposed that he would argue the principles set out in Sections 103, 114 and 224 – 226 of the Land and Titles Act.
6. It is noted that section 103 can have no relevance as it relates to conditions that may be imposed by the Commissioner in respect of land converted to a fixed term estate pursuant to section 100. Section 100 relates to land that was not owned by a Solomon Islander, prior to Independence.
7. Nothing is set out on what basis section 114 might have any application.
8. Sections 224 to 226 of the Land Titles Act relate to acquisition by prescription and nothing was put forward to show that those sections have any relevance.
9. On 27 July 2020 the application for judgment by default was heard by a judge who considered the sworn statements filed by both the Claimant and the Defendants and the submissions of both sides.
10. The Judge entered judgment by default in the following terms.
    • “1. Judgment in default of defence be entered against the Defendants;
    • 2. The Claimant recover possession of Parcel Number 192-004-174 (“the Land”) from the Defendants within 14 days from the date of this order;
    • 3. The Defendants remove from Parcel Number 192-004-174 all buildings and structures erected by them or each of them on the Land within 14 days of the date of this order;
    • 4. A consequential permanent injunction restraining:-
    • (a) the Defendants, their family members, relatives, wantoks, servants, agents, invitees or other persons claiming by or through them; and
    • (b) any and all other occupants of Parcel Number 192-004-174 from thereafter entering, using or otherwise occupying Parcel Number 192-004-174.
    • 5. In default of strict compliance with orders 2 and 3 hereof, sufficient evidence whereof shall be a sworn statement sworn by the Claimant’s solicitors, an enforcement order for possession of the Land issue without the need for any further application or order, authorising the Sheriff of the High Court to enter onto Parcel Number 192-004-174 and deliver possession of the land to the Claimant;
    • 6. The Defendants pay damages for trespass or alternatively mesne profits to be assessed, from 30 September 2017 until the date on which the Claimant recovers possession of the Land.
    • 7. Interest on damages at the rate of five per centum (5%) per annum from 30 September 2017 until full payment.
    • 8. A penal notice be attached in respect of paragraphs 2, 3 and 4 of this order.
    • 9. Costs;”
11. On 26 August 2020 an enforcement order was granted for the possession of the land. On 10 September 2020 the Sheriff of the High Court served the Notice of Eviction.
12. On 22 July 2021 after hearing from counsel for both parties the Court suspended enforcement of the judgement and gave directions relating to the hearing of an application to stay enforcement. The fixture to hear the application and a further application to join an interested party was vacated as counsel for the Defendants was unwell.
13. Time was extended for the Defendants to comply with the previous orders. A further application to stay or suspend enforcement against the interested party was filed on 18 September 2020.
14. The direction orders were complied with by the Claimants but not by the Defendants by the time of the hearing on 28 September 2021. I proceeded to hear oral submissions on both applications.
15. The interested party claimed he had built on the land commencing in June 2020. He said he relied on the outcome of another case being CCN 104 of 2017 referred to in paragraph [4].
16. The information put forward by the interested party does not assist him. He had produced a list of lands on a notice from the Commissioner of Lands being. That notice listed lands the Commissioner intended to forfeit. The parcel PN 192-004-172 was not one of those lands.
17. While the interested party has deposed that he commenced building on the land on the basis of advice from Jack Ura he has not produced any draft defence. He commenced the building before the injunction was in place but has clearly continued in spite of the injunction prohibiting such construction. He may have a claim against Jack Ura but has not shown any basis for a claim against the Claimant that might have entitled him to build on the land. In addition the claim by the Claimant is against all occupants of the land. While the interested party may have entered the land after the proceedings commenced, the judge who granted the judgment was satisfied about service on the occupants. The fact that he entered the land after the proceedings commenced does not assist him.
18. The other Defendants have not put any draft defence before the Court so that the Court can assess whether they have a good defence.
19. The Defendants have relied on the Townsville Treaty, an amended claim in case 104 of 2017 which does not relate the land in issue in this case, photographs of houses on the occupied land, a letter from the Honourable Ishmael Avui MP concerning the proposed plans of the then Government, and a letter sent from a public servant the Lands Division to the Minister.
20. None of those documents indicate a basis for the Defendants to occupy the land. The Claimant is the registered owner of the land. The Claimant has a judgment which has not been set aside. There has been no basis in law put forward to show a defence to the claim.
21. The interested party seeks to be joined as a defendant. The application must fail as he claims to be an occupier of the land which of itself makes him a party already.
22. Rules 3.5 and 3.6 of the Solomon Islands Courts (Civil Procedure) Rules 2007 provide:
    • “3.5 The Court may order that a person becomes a party to a proceeding if the person’s presence as a party is necessary to enable the court to make a decision fairly and effectively in the proceeding. A person who does not consent to be added as a claimant shall be added as a defendant.
    • 3.6 A person affected by a proceeding may apply to the court for an order that the person be made a party to the proceeding.”
23. On reviewing all the material before the Court I must consider whether the interested person’s presence is necessary to enable the Court to make a decision fairly and effectively. There is no question that the interested party has built on land that belongs to the Claimant. He has continued to do so when there was an injunction in place preventing him from doing so. Judgment has already been entered. I do not consider that joining the interested party is necessary to fairly and effectively determine whether the enforcement order should be set aside. This is especially so when as an occupier of the property he is already a defendant and has filed material before the Court.
24. There has been nothing put forward to show that the enforcement order should be set aside or suspended. The applications to set aside and suspend the enforcement order and to join the interested party as a party must both be refused. The Defendants are to pay the costs of the Claimant, if not agreed to be taxed.

Orders

1. The application to join the Honourable Titus Fika as a party to the proceedings is refused.
2. The application to set aside or suspend the enforcement order is refused.
3. As the enforcement order has now lapsed through no fault of the Claimant the Court grants a fresh order that the Claimant do recover possession of parcel 192-004-174 from the Defendants within 21 days from 1 May 2025.
4. The Defendants are to remove from parcel 192-004-174 all buildings and structures erected by them on the land within 21 days from 1 May 2025.
5. A consequential order issue permanently restraining:-
   • (a) the Defendants, their family members, relatives, wantoks, servants, agents, invitees or other persons claiming by or through them; and
   • (b) any and all other occupants of the Parcel Number 192-004-174, from thereafter entering, using or otherwise occupying Parcel Number 192-004-174.
6. In default of strict compliance with Orders 2 and 3, sufficient evidence whereof shall be a sworn statement sworn by the Claimant’s solicitors, an enforcement order for possession of the Land without the need for any further application or order, authorising the Sheriff of the High Court to enter onto Parcel Number 192-004-174 and deliver vacant possession of the land to the Claimant.
7. The Police Commander of Guadalcanal Province and all Police officers under his direction shall render such assistance as the Sheriff of the High Court may require for enforcement of the Enforcement Order for Possession using such force as is reasonably necessary for such purpose;
8. A Penal Notice attach to Orders 2, 3 and 4.

AND UPON READING the sworn statement of Dudley Wu filed on 14 April 2025.

THE SHERIFF OF THE HIGH COURT is HEREBY ORDERED, DIRECTED AND AUTHORISED TO:-

9. Enter onto Parcel Number 192-004-174, and cause the Claimant to have vacant possession of same, including without limitation to:-
   • (a) Remove any and all the Defendants, their family members, relatives, wantoks, servants, agents, invitees or other persons claiming by or through them from the said Parcel; and
   • (b) Remove from the Parcel Number 192-004-174, all buildings and structures erected by the Defendants, their family members, relatives, wantoks, servants, agents, invitees or other persons claiming by or through them as may be identified to you by the Claimants; and
   • (c) Deliver vacant possession of Parcel Number 192-004-174 to the Claimants.

AND IT IS FURTHER ORDERED THAT:-

10. The Police Commander of Guadalcanal Province and all police officers under his or her direction shall render such assistance as the Sheriff of the High Court may require for enforcement of this Order using such force as is reasonably necessary for such purpose.
11. This enforcement order ends on 1 May 2026 if not sooner enforced.

Perfected, signed and sealed this ...... day of May 2025.

By the Court
Hon. Justice Howard Lawry
Puisne Judge