Maneniaru v Bule [2009] SBCA 23; Civil Appeal 01 of 2009 (23 July 2009)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Faukona, J.)
COURT FILE NUMBER:	Civil Appeal Case No. 1 of 2009 (On Appeal from High Court Civil Case No. 235 of 2008)
DATE OF HEARING:	12 July 2009
DATE OF JUDGMENT:	23 July 2009
THE COURT:	Goldsbrough, PA
	McPherson, JA.
	Williams, JA.
PARTIES:	Maneniaru	Appellant
	-V-
	Bule & Bule	Respondent
ADVOCATES:
Appellant:	M. Pitakaka for Appellant
Respondent:	W. Rano for Respondent
KEY WORDS:
EX TEMPORE/RESERVED:	Reserved
ALLOWED/DISMISSED:	Allowed
PAGES:	1 - 3

JUDGMENT OF THE COURT

1. This is an appeal against a judgment entered under Rule 9.57 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (hereinafter referred to as the Rules). That judgment ordered damages in the sum of $30,000, immediate possession of the Fixed Term Estate 191-041-200 (referred to as "the Land") and included a declaration that any building erected on the land is the property of the claimants, that is to say the respondents to this appeal. This order was perfected on 10 October 2008, having been made on 9 October 2008.
   
2. The order was made on the basis of an application for default judgment or in the alternative summary judgment, supported by a sworn statement and in circumstances where the appellant had entered neither a response nor a defence to the claim. At the hearing for default judgment the appellant was represented by counsel, as were the respondents.
   
3. After hearing both counsel and considering the material tendered on the application together with the statement of claim, the judge at first instance concluded that the appellant had no defence to the claim. His conclusion was influenced, no doubt, by the submission of counsel for the appellant that there was no defence to the claim, but that the appellant hoped that the respondents would accept an offer to be made by the Commissioner of Lands, at the request of the appellant, of an alternate piece of land. At the hearing it was made clear to the presiding judicial officer that the respondents would not accept any offer of alternative land, and that in that event there was no purpose served in further adjourning the application for the offer to be made.
   
4. Since the hearing in October 2008 the appellant has instructed different counsel, and criticism of previous counsel is contained in the appellant's submissions. The essence of the case for the appellant in this Court is that the Commissioner of Lands should not have issued a lease to the claimants of this particular piece of land due to its nature, size and position as related to the adjoining land which the appellant holds, in other words that the land is not suitable for subdivision. Having at one time believed that this land was a part of the land he had acquired, the appellant built upon that land, at it now turns out, in error.
   
5. At the time of the hearing in October 2008, submissions of counsel for the appellants were, in law and fact, correct. The appellant had no defence to the claim brought against him, only the hope that an alternative settlement could be reached. There had been, and there still is not, any challenge brought against the Commissioner of Lands, not a party to these proceedings, against his decision to offer to the claimants this land. That the appellant believed that this action by the Commissioner of Lands was inappropriate in the circumstances does not, in our view, amount to a defence to the claim brought. This court is not aware of what transpired between the appellant and former counsel as regards instructions to bring proceedings against the Commissioner prior to these proceedings and therefore cannot comment. We are aware that present counsel for the appellant sees no merit in a stay of execution of this order pending such proceedings being brought, as the same was raised during the hearing of this appeal and was not considered to be a route that the appellant wished to adopt.
   
6. The sworn statement filed with the application for default or summary judgment verified the facts relied upon by the claimant and in the absence of any defence the judge at first instance was correct to determine that judgment should be entered against the defendant. What is not so clear is the existence of any evidence which supports the quantum of damages specified in the statement of claim. The sworn statement in support merely confirms that the amount claim in damages is indeed $30,000, and does not in any way outline that the damages are assessed in any way other than by arbitrary choice.
   
7. On behalf of the appellant it was submitted that to deny him a trial is contrary to natural justice. This ground of appeal runs against the provisions in the Rules as regards ending proceedings at an early stage. In a case where there is no defence disclosed, just as in a case where the defendant chooses not to respond to proceedings, the Rules provide for orders to be made. This is not to deny an opportunity to be heard, but to ensure that in the absence of a defence, after an opportunity has been given to indicate such defence, proceedings can be brought to a conclusion.
   
8. In the event this appeal against judgment being entered in the circumstances presented to the judge at first instance fails. As regards the quantum of damages, we are of the view that this must be assessed by a judge, and the order should have been damages to be assessed rather than damages in an amount for which there is no evidence in support. This court therefore allows the appeal to the extent that the quantum of damages be entered as damages to be assessed and remits the matter to the High Court for determination of the quantum of damages only, the balance of the order to remain. The appellant has not been successful on this appeal in seeking that the judgment be reversed, but he has been successful in part on quantum. In the circumstances the appropriate order as regards costs is that each party bear their own costs of the appeal.
   

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Goldsbrough, PA
President

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McPherson JA
Member

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Williams JA
Member