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Sawane v Dausabea [2024] SBHC 50; HCSI-CC 113 of 2015 (17 May 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 113 of 2015

BETWEEN

CONSTANCE SAWANE AND GERENA SAWANE
Claimant

AND:

FLOYD DAUSABEA, DAVINIA DAUSABEA
AND CHARLES DAUSABEA JUNIOR
First Defendants

AND:

EASTERN MARKETING AND DISTRIBUTORS
Second Defendant

AND:

BANK SOUTH PACIFIC
Third Defendant

Date of Hearing: 25 March and 23 April 2024
Date of Judgment: 17 May 2024

Mr Chris Hapa for the Claimant
No appearance for the First Defendant

JUDGMENT

Aulanga PJ

1. For clarity purposes, the Second and Third Defendants were included as parties to this proceeding in the amended claim. However, they were removed from being parties to the proceeding when the amended claim was struck out. Hence, the initial claim remains on foot and the reliefs sought in the claim only apply to the First Defendants.

Background of Case

2. The Claimants are the children of late Francis Sawane. He died intestate. On 27^th February 2015, the Claimants were granted Letters of Administration by the High Court to administer the estate of their late father. The estate is a registered Fixed Term Estate No. 171-0-001-71 (property) situated in Auki in the Malaita Province.
3. The First Defendants are the children of late Charles Dausabea. Like the Claimants, they were also granted Letters of Administration by the High Court on 3^rd March 2020 to administer the estate of their father.
4. The property subject to this proceeding is currently registered in the names of the Claimants. It is a 50-year fixed term estate lease, commencing on 17^th June 2015. It was registered to them after they were granted the Letters of Administration of the estate of their father. There were two houses built on the property which were occupied by persons other than the Claimants.
5. In the claim, the Claimants sought these three reliefs. First, for eviction of the First Defendants and their agents or illegal occupants from that property. Second, for the Claimants to take complete possession of the property and third, for costs.

Defence and Counterclaim

6. The First Defendants filed defence and counterclaim. In the defence, liability was denied. The counterclaim against the Claimants is on the ground that the Claimants have colluded with an unnamed officer of the High Court in concealing an order relating to this property granted in favour of the Third Defendant in another High Court case. If disclosed, as averred by the First Defendants, it would render them as bonafide purchaser of the property. The First Defendants also made a counterclaim against the Third Defendant based on fraud in dealing with the property that resulted in the rejection of their purchase of the property following the 10% deposit payment.
7. Unfortunately, there is no satisfactory evidence from the First Defendants to prove the allegation of the purported fraudulent dealing suspected of by the First Defendants between the Claimants and the unnamed High Court officer. In my view, this is a serious ground. However, due to lack of satisfactory evidence, this ground is nothing short of, but a mere suspicion or assumption. I reject the counterclaim.
8. Next is, the Third Defendant is no longer a party to this case following a Strike Out order made on 2^nd August 2016. This must follow that the counterclaim is no longer in existence and now ineffective. This means, any allegation on fraud on the part of the Third Defendant now naturally dies after the removal of the Third Defendant from this proceeding. Also, before and during the trial, counsel represented the First Defendants had already withdrew legal representation. That was on 1^st November 2023. The First Defendants did not appear during the trial which has rendered the Claimants’ case during the trial clearly uncontested and entrenched.
9. It is an undisputed finding of this Court that the First Defendants and their unauthorised agents or persons have been occupying that property despite they do not have the title to the property. The First Defendants have refused to surrender or vacate the property and relied on a 10% deposit payment of the property in early 2007 when it was put out for sale by the Third Defendant as a result of Claimant’s father default with a loan repayment. That loan was eventually settled or discharged by the Claimants’ father in November 2014. Thereafter, the property continued to be registered under the Claimant’s late father and eventually, to the Claimants in 2015. In the light of the removal of the Third Defendant from the proceeding, there is of course no prospect of success in relying on this ground.

Nonappearance of the First Defendants during trial

10. For this trial, as said earlier, only the Claimants were present and had given evidence. The First Defendants had been personally served with the notices, respectively on 21^st February 2024 and 22^nd February 2024, to attend the trial. Despite being served, they did not bother to attend to the trial. Having served with the notices, I am satisfied that they had known of the trial date and did absolutely nothing to appear in Court. Because of their omission, the Court is not assisted with any explanations or arguments why the claim should be discharged. I therefore reached a conclusion that the First Defendants’ defence and evidence in support are unconvincing, unmeritorious and must be rejected forthwith.

Title and right of use and occupation of the property

11. Having rejected the First Defendants’ case, the next issue is whether or not the First Defendants and their agents are lawful occupants of the property and if not, should they be evicted? The unchallenged evidence which I accept shows the Claimants are the registered title holders of the property since 2015. They hold the lease for 50 years without any encumbrances. Their right of indefeasibly of title to the property is protected under the Land and Titles Act. On the other hand, the First Defendants do not hold the title to the property herein. Having their defence and counterclaim being dismissed by the Court, there is no shred of proprietary right to that property they could claim. Rightly put, they should be considered as squatters or trespassers on the property.
12. In Department of Environment v James and others [1972] 3 All E.R. 629 squatters and trespassers are defined as: "he is one who, without any colour of right, enters on an unoccupied house or land, intending to stay there as long as he can...." The Court then continued to state ".....where the plaintiff has proved his right to possession, and that the defendant is the trespasser, the Court is bound to grant an immediate order for possession....." Another definition of "trespasser" is as set out in Clerk & Lindsell on Torts (15th Ed. 1982) page 631 as "A trespasser is a person who has neither right nor permission to enter on premises". Also as was said by Lord Morris of-Borth-Y-Gest in British Railways Board v. Herrington [1972] UKHL 1; [1972] A.C. 877 at 904 that "The term 'trespasser’ is a comprehensive word; it covers the wicked and the innocent; the burglar, the arrogant invader of another’s land, the walker blindly unaware that he is stepping where he has no right to walk, or the wandering child - all may be dubbed as trespassers". From these definitions, all I can conclude is, in the absence of having the title to the property, the First Defendants have been in illegal occupation of the property.
13. This case involves a crown or registered land where the right to use and occupy the land is accorded to the lessee or the registered fixed term estate holder under the Land and Titles Act. That right cannot be circumvented or sidestepped by illegal occupants or trespassers. Unless the First Defendants can show on evidence that they have a good title to the land, the Claimants right of use and occupation of the property should not be denied or thwarted by the First Defendants as trespassers. Having occupying the property all these times without the title, the First Defendants in fact had denied the Claimants the right to use and enjoy the property. To evict the First Defendants from the property is the obvious remedy this Court must make.
14. I am satisfied with the Claimants’ case on the balance of probability. I therefore order immediate eviction of the First Defendants and or their agents or those who currently occupying the houses in Fixed Term Estate No. 171-0-001-71 situated in Auki, Malaita Province. I also order the Claimants to take immediate possession of the property including the houses built on that property. Any structures erected by the First Defendants on the property must be removed by the First Defendants at their own costs forthwith. Cost of this proceeding is to be paid by the First Defendants on standard basis, to be taxed if not agreed.

Orders of the Court

1. Order immediate eviction of the First Defendants and or their agents or those who currently occupying the houses in Fixed Term Estate No. 171-0-001-71 situated in Auki, Malaita Province.
2. The Claimants shall take immediate possession of the property including the houses built on that property.
3. Any structures erected by the First Defendants on the property must be removed by the First Defendants at their own costs forthwith.
4. Costs of this proceeding to be paid to the Claimants on standard basis, to be taxed if not agreed.

THE COURT
Augustine Sylver Aulanga
PUISNE JUDGE