Patty v Tikani [2000] SBHC 50; HC-CC 197 of 2000 (29 November 2000)

HIGH COURT OF SOLOMON ISLANDS

FRAZAR PATTY & ISABEL DEVELOPMENT AUTHORITY (IDA)

V

JAMES TIKANI

High Court of Solomon Islands
(F.O. KABUI, J)

Civil Case No. 197 of 2000

Hearing: 28th November 2000
Judgment: 29th November 2000

J. Apaniai for the Plaintiffs
Defendant not present

JUDGEMENT

(Kabui, J): The 1^st Plaintiff is a member of the Vihuvunagi Tribe from the Isabel Province. The 2^nd Plaintiff is the Isabel Development Authority (the Plaintiffs). They filed a Writ of Summons on 14^th August 2000 together with a Statement of Claim against James Tikani (the Defendant). In the Statement of Claim, the Plaintiffs claimed the following relief –

(1) A Declaration that the action by the Defendant in entering LR 690 and erecting road blocks therein without the authority of the First and Second Plaintiffs is unlawful and amounts to trespass.

(2) An order restraining the Defendant, his servants, agents or representatives, from entering LR690 and/or erecting any further road blocks within the boundaries of LR690;

(3) An order restraining the Defendant, his servants, agents or representatives, from obstructing, harassing or threatening the First, and Second Plaintiffs and Rosewood Limited or the servants, agents or representatives of the said First and Second Plaintiffs and Rosewood Limited, from entering LR690 or from carrying out logging operations and related activities on the said LR 690;

(4) Damages for trespass;

(5) Such other remedies as the Court thinks just;

(6) Costs.

The Defendant having filed no appearance or defence, the Plaintiffs applied to the Court and obtained a judgment in default of appearance and defence on 27^th November 2000. I am now giving the reasons for the orders I made on 27^th November 2000.

The dispute in this case is over what the correct boundary is between LR690 and LR689 being two areas of land on the Island of Santa Isabel in the Isabel Province. The local name for LR690 is Banisokeo Land. It was acquired in 1973 by the Government and registered in the names of four trustees for the Vihuvunagi tribe of which the 1^st Plaintiff is a member. In 1996, the 2^nd Plaintiff obtained a licence from the Government to carry out logging operation within LR690. By a written Agreement signed by the 1^st Plaintiff and the 2^nd Plaintiff, the 2^nd Plaintiff was allowed to enter upon LR690 to carry out logging operation. This Agreement was made on 23^rd July 1996. The next day 24^th July 1996, a Timber Rights Agreement was executed between the Plaintiffs and Rosewood Limited. Under this Agreement, Rosewood Limited was to pay royalties to the 1^st Plaintiff and commission to the 2^nd Plaintiff. The 2^nd Plaintiff and Rosewood Limited commenced operation within LR690 in about June, 1997 and have remained there since. On 25^th May 2000, the Defendant warned the 1^st Plaintiff and Rosewood Limited and threatened them with violence. In about June, 2000, the Defendant, his servants and agents without the permission of the Plaintiffs and Rosewood Limited, entered upon LR690 and erected road blocks within LR690 preventing the Plaintiffs and Rosewood Limited from continuing logging operations there.

The Writ of Summons filed by the Plaintiffs specified 14 days after service upon the Defendant for the Defendant to enter appearance in default of which judgment could be given in the absence of the Defendant. In this case, the Defendant was served with the Writ of Summons and Statement of Claim on 9^th September 2000. The 14 days period from that date would have been 22^nd September, 2000. The Plaintiff did not take action so as to obtain a default judgment for non-appearance by the Defendant to the Writ of Summons. In terms of Order 23, rule 6 of the High Court (Civil Procedure) Rules 1964, (the High Court Rules), the Defendant should have filed defence within 14 days from the expiry date of the first 14 days required for the entering of appearance. In this case, the 14 days should have run from 22^nd September 2000 and ending 14 days thereafter being 5^th October 2000. The Plaintiffs had waited 48 days and then filed the application to enter judgment against the Defendant in default of appearance and defence. I was satisfied that this was a case where the only logical thing to do was to the grant the order asked for by the Plaintiffs. The terms of the order are contained in the Order I signed on 27^th November 2000.

F.O. Kabui
Judge