(Kabui,
J):
By Notice of Motion filed on 27th February 2001, the Defendant
seeks to set aside the default judgment entered against the Defendant on 29th
November 2000.
The
Applicant�s Case
The
Applicant being the Defendant has invoked Order 29, rule 12 of the High
Court (Civil Procedure) Rules 1964 (the High
Court Rules) in the usual way.
In support of the Defendant's position, Counsel for the Defendant, Mr. Suri,
cited Kayuken Pacific Limited v Harper [1987] S I L R 54, Solomon
Islands National Provident Fund v Solomon Islands Electricity Authority
(Civil Case No. 55/2000) and the English case of Evans v Bartlam
[1937] 2 A.E.R.646 Counsel pointed out that in this sort of cases, there
were three things that the Court in the exercise
of its discretion ought to
consider, namely, the reason for the party's absence at the hearing, the
delay by the absent
party in calling for a new trial and whether the other
side would be unduly affected by an order for a new trial? Counsel argued
that on the evidence before the Court, these factors were all in favour of
the Defendant including the existence of a
prima facie defence.
Th Plaintiffs� Case
Counsel
for the Plaintiff, Mr. Apaniaposed this application. The. The main thrust of
his case is that the evidence filed
in affidavit form on behalf of the
Defendant did not disclose any prima facie defence because Parcel No.
090-002-2 is
registered land. Likewise, he argued that the three factors
cited by Counsel for the Defendant, Mr. Suri, above were also in
favour of
the Plaintiff.
The
Ruling
090-002-2
(L.R
690)
is
registered in the names of five persons as joint owners on behalf of the
Vihuvunagi tribe of which the 1st
Plaintiff is a member. It is registered
land and the title is indefeasible under the Land-Titles Act (Cap. 133).
As such,
title can only be defeated by proving fraud or mistake unde under section 229 of
the Land & Titles Act. What
there, if any, is the defence? There is no
defence against indefeasibility of title under the Land & Titles Act.
Exhibit
"T6"
attached to Mr. Tikani�s affidavit filed on 19th April 2001
cannot be a defence to the Plaintiffs claim for trespass against the
Defendant because the Plaintiff through
the joint owners are the exclusive
owners of Parcel No.090-002-2 and no one else. There is no evidence of a
prima facie
defence, which discloses a triable issue in this case. The fact
is that there is no triable issue here. If it is, what is that
triable
issue? Ownership of Parcel No. 090-002-2 cannot be a triable issue nor is
the question of the boundary of Parcel
No. 090-002-2. Section 97 of the Land
& Titles Act does however enable the Registrar of Titles to ascertain the
position
of uncertain or disputed boundaries of registered land but the
Registrar of Titles does not have the power to alter boundaries.
The Court
also cannot alter boundaries of registered land under this section. The
Defendant must therefore look elsewhere
for his remedy. The Defendant has
already filed a Writ of Summons and a Statement of Claim in Civil Case No.
029/2001
in which he is the Plaintiff claiming rectification of the register
in his favour on behalf of his tribe. Counsel for the Defendant,
Mr. Suri,
argued that this case could be consolidated with Civil Case No. 029/2001. He
said this because Exhibit 76 referred
to above is a document containing a
defence to the Plaintiff's action in this case and a counter-claim based
upon Civil
Case No. 029/2001. I do not accept this argument because there is
no triable in this issue case. The Defendant's counter-claim
is a duplicate
of Civil Case No. 029/2001 already filed by the Defendant in his capacity as
a Plaintiff seeking the same
remedy. On reaching the conclusion that there
is no evidence of a prima facie defence disclosing any triable issue, I need
not consider the other factors relevant to the exercise of the Court's
discretion in either granting the Order to set
aside or refusing it. I need
not reach that stage in this case. The lack of a prima facie defence in this
case is enough
to enable me to dispose of this case in favour of the
Plaintiff. I refuse the Defendant's application. The application is
dismissed with costs.
F.O.
KABUI
JUDGE
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/sb/cases/SBHC/2001/62.html
