Tarasel v Kariuvi [1998] SBHC 136; HCSI-CC 262 of 1997 (30 November 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No.262 of 1997

HAROLD TARASEL

-v-

EDWIN KARIUVI AND OTHERS

High Court of Solomon Islands
(F O KABUI J):
Civil Case No. 262 of 1997

Hearing: 26th November, 1998
Judgment: 30th November, 1998

John Wasiraro for the Plaintiff
No Appearance for the Defendants

JUDGMENT

Kabui J - The Plaintiff in this case is Mr. Harold Tarasel (the Plaintiff). He is a member of a tribal group who say they own Limapogu Land near Tatamba on the Island of Santa Ysabel. Messrs Edwin Kariuvi and Leonard Robert Oha are the First and Second Defendants (the Defendants). They too are from the Tatamba area of Santa Ysabel. By a Writ of Summons filed in the High Court on 24th October, 1997, the Plaintiff claims damages against the Defendants for trespass upon the Limapogu Land together with other consequential relief. The Writ of summons together with the Statement of Claim were served upon the Defendants on 9th November, 1997. There being no appearance having been entered for each of the Defendants, the Plaintiff by Summons, filed an application for judgment in default of appearance on 2nd April, 1998. This application is purported to have been made under Order 13, rule 9 of the High Court (Civil Procedure Rules) 1964 (the High Court Rules). Rule 9 states “In all actions not by the Rules of this Order otherwise specially provided for (including actions for the recovery of land and a claim for mesne profits), in case the party served with the writ does not appear within the time limited for appearance, upon the filing by the plaintiff of a proper affidavit of service, and, if the writ is not specially indorsed under Order 3, Rule 5, of a statement of claim, the action may proceed as if such party had appeared, subject, as to actions where an account is claimed, to the provisions of Order 16”

Earlier, the Plaintiff, by Notice, filed in the High Court on 9th February, 1998, had withdrawn his action against the First Defendant. The Plaintiffs application against the Second Defendant (the Defendant) was heard by me on 26th June, 1998. The hearing was adjourned on the request of the Defendant’s Counsel, Mr. Wasiraro, to allow the Defendant to file an affidavit supporting his application for a default judgment. That affidavit was filed on 21st October, 1998. The Plaintiff has also filed an affidavit of service upon the Defendant of the Summons for his application for a default judgment. The Plaintiff’s application was again heard by the on 26th November, 1998. The substance of his application was that the Defendant had failed to appear or filed a defence to the Plaintiff’s Writ of Summons despite having been served by the Plaintiff himself. There is an affidavit of service to that effect.

The Plaintiff prays that:-

1. The Defendant pays damages for trespass to be assessed;

2. The Defendant, his relatives, employees, agents and contractors be restained from entering Limapogu Land for the purpose of felling trees, gardening or hunting;

3. The Defendant, his relatives, invitees, servants and contractors be evicted from Limapogu Land;

4. The Defendant pay the cost of the Plaintiff’s action;

5. Such other orders as the court deems just and equitable in the circumstances of the case.

As already been said, the Defendant had been served with the Plaintiff’s Writ of Summons and Statement of Claim on 9th November, 1997. It is not disputed that the Defendant had filed no appearance or defence to the Plaintiff’s Writ of Summons

In terms of Order 23, rule 6 of the High Court Rules, the Defendants should have filed their defence within 14 days from the time limited for appearance. Rule 6 states:
“Where a defendant has entered an appearance, he shall deliver his defence within fourteen days from the time limited for appearance or from the delivery of the statement of claim, whichever shall be later, unless such time is extended by consent in writing or by the Court, or, in actions in which the writ of summons has been specially indorsed with or accompanied by a statement of claim under Order 3, Rule 5, the plaintiff in the meantime serves a summons for judgment under Order 14”.

It is also not disputed that the Plaintiff’s application by Summons for judgment in default of appearance and defence was filed on 2nd February, 1998, well beyond 28 days within which appearance and defence should have been filed by the Defendants. The next logical step for the Plaintiff to take is to apply by motion under Order 29, rule 8 to set down the action on motion for judgment. Rule 8 states: “In all other actions than those in the preceding Rules of this Order mentioned, and those to which Rule 14 of this Order applies, if the defendant makes default in delivering a defence, the plaintiff may set down the action on motion for judgment, and such judgment shall be given as upon the statement of claim the Court shall consider the plaintiff to be entitled”.

This can, in my view, be done under Order 42, rule 1 of the High Court Rules. Rule 1 states: “Except where by these Rules it is provided that judgment may be obtained in any other manner the judgment of the Court shall be obtained by motion for judgment”.

In this case, this is where the confusion arises, at least in my view. The Plaintiff’s application by Summons for a default judgment is said to be done under Order 13, rule 9 of the High Court Rules. At least, that is what the heading of the Summons says. I can find no basis for that in rule 9. This rule is merely permissive of what the Plaintiff can do in this situation. In other words, the Plaintiff may well choose to proceed to trial depending upon the nature of his claim. This is not unusual in Court practice (see Austin v Wilding (1969) 1 WLR 67.). What course to take is a matter for the Plaintiff to decide on the facts of his or her case. In this case, the Plaintiff thought he could get all by applying for a default judgment. This was his choice as a matter of fact. That being so, I must treat his application by summons as a motion for judgment under Order 23, rule 6 as read with Order 42 of the High Court Rules. Evidence is not to be called in proceeding for a motion for judgment. This means I must only look at the Plaintiff’s pleading alone in this case. I can easily see that the pleadings are not complete. They have not been closed. This is not helpful to say the least. However, this is it. The Plaintiff’s claim for damages and other relief is based upon the ownership of customary land. Paragraph 2 of the Plaintiff’s Statement of Claim states “Ownership of the land was determined in favour of the Plaintiff’s line by the Isabel Customary Land Appeal Court in a judgment dated 31st October, 1985”. This is, in my view, not conclusive evidence of ownership of Limapogu Land (See Mega Corporation Limited, v Nelson Kile and Zarihana Timber v Nelson Kile, Court of Appeal, Civil Case No.1 of 1997). In the Mega Corporation case above, the Court of Appeal said that the fact that the final determination of the land dispute was being awaited was no evidence of customary ownership of land. That is to say, a mere assertion of ownership is not sufficient in law. In this case, I would take the matter one step further and say that the fact that paragraph 2 above of the Statement of Claim refers to a decision of the Isabel Customary Land Appeal Court dated 31st October, 1985 is not enough as evidence of ownership of Limapogu Land without the production in Court of a copy of that decision. However, the opportunity for the Plaintiff to produce that evidence in Court has now been missed because of the rules of evidence in proceedings for judgment by way of motion under Order 42, rule 1 above. That is to say, the Court would only look at the pleadings as they are at the time of the motion. In my view, the Plaintiff should have proceeded to trial in this matter though in the absence of the Defendant. A short-cut procedure in this case would not necessarily result in favour of the Plaintiff because of the nature of his claim-being the ownership of customary land. However, in terms of Order 42, rule 6, the court would seem to have discretionary powers in dealing with a motion for judgment. Rule 6 states: “Upon a motion for judgment, the Court may draw all inferences of fact, and if satisfied that it has before it all the materials necessary for finally determining the questions in dispute, or any of them, or for awarding any relief sought, give judgment accordingly, or may, if it shall be of opinion that it has not sufficient materials before it to enable it to give judgment, direct the motion to stand over for further consideration, and direct such issues or questions to be tried or determined, and such accounts and inquiries to be taken and made, as it may think fit.

In my view, rule 6 above does allow the Court if it is of the opinion that there are insufficient materials to enable it to give judgment to adjourn the motion for further consideration and direct the issues in question to be tried accordingly.

The issues in question in this case being the issues raised in the plaintiff’s pleading. I therefore order that this motion for judgment be adjourned and direct that the issues involved be tried in the usual way a date to be fixed by the Plaintiff in consultation with the Registrar of the High Court.

F. O. Kabui
Judge