Rasi v Dhorah Sawmilling Company Ltd [1998] SBHC 8; HC-CC 264 of 1992 (3 February 1998)

HIGH COURT OF SOLOMON ISLANDS<

Civil Case No. 264 of 1992

JOHN RASI,
PETER ENEKERNEKERA

v

DHORAH SAWMILLING COMPANY LIMITED

AND OTHERS

High Court of Solomon Islands
(Muria, CJ.) Civil Case No. 264 of 1992

Hearing: 19th December
Ruling: 3 Februarbruary 1998

Philip Tegavota for the Plaintiff
Thomas Kmas Kama for the Defendant

MURIA CJ: This is an application by way of notice of Motion brought by the plaintiff for judgement to be entered against the defendants. Basically the plaintiff relies on the decision of the Gizo Kolobangara Local Court which awarded him the customary ownership over Neme Land as well as confirming the boundaries of that land. In view of that, the plaintiff says that the defendants no longer have a valid defence against his claim.

The defendants say that they still have valid defences to the plaintiff'tiff's claim. They argued that the claim against them was for damages for trespass and there are matters before the Court which are relevant to their defences to the plaintiff's claim. They further argued that the decision of the Local Court on the ownership and boundaries of Neme Land is not in itself sufficient to support a judgement.

The plaintiff's claim for injunction restrainingining the defendants from entering the land in question until trial, an account of all timber wrongfully converted, damages for trespass and a declaration that the defendants Licence No. TIM/3/12 does not cover the said land. On 15 September 1992 this Court ordered the defendants be restrained from entering or carrying out any operations whatsoever on Neme Land. That order was continued on 25 February 1993 until trial or further order. On 4 November 1993, the Court issued an Order for Directions. Among other things this Court directed that the Roviana Local Court determined the true boundaries of Neme Land; that whether the plaintiffs are or fourth defendant is the true customary owner of the said land; that whether the plaintiffs are or the defendant is the true customary owner of any other areas on Dhora Islands; and that the matter be set down for hearing after the determination by the Local Court of those issues and upon filing certification of readiness for trial.

Although the Rovianal Court did not deal with with the matter referred to it by the High Court, the Gizo/Kolombangara dealt with it. The Local Court found the plaintiff John Rasi to be the owner of Neme Land. The Local Court also established the boundaries of the said land. The CLAC confirmed these findings.

Can it be said, in the light of the fis of the Local Court, that that there are sufficient materials before this Court to found a judgement for the plaintiff? In this regard it would be worth noting the rules 3 and 6 of 0.42 of the High Court (Civil Procedure) Rules. Rule 3 provides:

quot;3. Where issues have bave been ordered to be tried, or issues or questions of fact to be determined in any manner, the plaintiff may set down a motion for judgment as soon as such issues or questions have been determined. If he does not set down such a motion, and give notice thereof to the other parties within ten days after his right so to do has arisen, then after the expiration of such ten days any defendant may set down a motion for judgement, and give notice thereof to the other parties."

ass="Mso="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1" align="left"> "6. a motion for judgment, the, 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 was 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."

Clearly that rule requires the Court to besfied that it has all the the materials necessary to finally determine the questions or any of them, in dispute. The onus of so satisfying the court lies with the party making the application. The Court is of course also entitled to draw inferences of facts from the materials before it. If at the end of the day the Court is not satisfied that it ran make final determination the question or issues in dispute based on the materials before it, the court may refuse to give judgment.

The principsue in the present action iion is one of trespass to land, a claim which the defendants denied and against which they set up the defence of consent. A determination of ownership and boundaries of the land in favour of the plaintiff would not, in my view, render it sufficient for the Court to finally decide the issue of trespass. There is also the challenge by the plaintiff against the extension of the Licence TIM/3/12 to his land, a claim to which the defendants rely on the alleged consent of the plaintiff allowing the said extension.

It is also worth appreciating the fact that the clae claim by the plaintiff is not a claim against another competing customary landowner simply as to the right of ownership in custom of the land in question. It is an action arising out of the activities of the first and second defendants on the land in question.

Viewing it as a whole and consid the above mentioned rules ules the determination by the Local Court on the issues of ownership and boundaries of Neme Land cannot be said to be sufficient to support a judgement for the plaintiff at this stage of the proceedings.

class="Mso="MsoNormal" align="left" style="margin-top: 1; margin-bottom: 1"> The Application is refused costs.

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(GJB Muria)
CHIEF JUSTIJUSTICE