Te'eu v Sanau [2001] SBHC 74; HC-CC 090 of 2001 (16 October 2001)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 90 of 2001

ass="Mss="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> TIMOTHY TEspan>

p class="Mss="MsoNormal" align="center" style="text-align: center; margin-left: 3.0pt; margin-top: 1; margin-bottom: 1"> - v - ALICK SANAU, JSUNUME,

DERRICK LIIHOU AND TOM HOUSI

(TRADING AS RAM HOLDING TIMBER TRADING)

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

Civil Case Number 90 of 2001

Hearing: 15th October 2001

<Judgment: 16th October 2001

Mr C. Ashley for thintiff

Mr J. Apaniai for the Defendant

JUDGMENT

(Kabui, J): By Notice ofon filed on 17^th/sup> September 2001, the Plaintiff seeks the following orders -

ass="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> 1. That the Defendants Licence TIM 3/294 is a Licence to operate a mill and is not a Licence to fell logs on Customary Land; and

2. That part II A of the Forest rces and Timber Utilizationation Act (as at then was) was not complied with by the Defendants; and

3. That the Plaintiff is entitle to have Judgment entered against the Defendefendants as set out in the Statement of Claim dated 17th and filed 21st May 2001.

4. Costs of the application be boy the Defendants.

This Notice of Motion is based upon Order 14, rule 1(a) of the High Court (Civil Procedure) Rules 1964 (the High Court Rules). Order 14, rule 1(a) above is a summary procedure to save costs of trial. It does not entitle the Plaintiff to use it in every case that is commenced by a writ specially indorsed under Order 3, rule 5 of the High Court Rules. This procedure is only used where the Defendant has no defence to the action commenced by a Plaintiff.

The requirements of Order 14 (1) (a) of the High Court Rules

The High Court Rules in this jurisdi are based upon the Rules of the Supreme Court in England 1and 1883. They do not therefore contain subsequent improvements that were brought about in later years as revised in 1965. Order 14, rule 1(a) of the High Court Rules must therefore be read and understood in that context. Order 14, rule 1(a) of the High Court Rules looks for a Writ of Summons that is indorsed with a statement of claim or accompanied by a statement of claim to which an appearance has been entered by the Defendant. If the Plaintiff makes up his or her mind at that stage to move for a summary judgment against the Defendant on the ground that the Defendant has no defence, then the Plaintiff or another person must file an affidavit to support the application for leave to enter judgment against the Defendant.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The affidavit must however state facts verify the cause of action, the amount claimed (if it is a is a liquidated sum) and the fact that in the Plaintiffs belief, the Defendant has no defence apart from the amount claimed. These are the requirements for the Plaintiff to fulfil if he or she wants relief under Order 14, rule 1(a) of the High Court Rules. That is to say ...

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Put shortly, the affidavit must verify the plaintiffs cause of action. Itn. It must also, to comply with the rules, depose that the defendant has no defence, other than as to the amount of damages, if damages are claimed.

To satisfactorily verify the cause of action, the affidavit must depose to all the facts necessary to establish that cause of action. It must verify the whole of the plaintiffs claim, that is, every essential element of the cause of action. An affidavit that fails to do so is insufficient to support the plaintiff's application”...

... “Apart from verifying the cause of action, the affidavit must also depose that in the belief of the plaintiff the defendant does not have a defence. Elliptical statements about the absence of a defence are insufficient. The plaintiff must expressly say that he believes there is no defence to the action"...In the event that the plaintiff's affidavit fails to comply with these requirements, the court has a discretion to allow a supplementary affidavit”...

ass="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> (see Australian Civil rocedure by Bernard C. Cairns at 311 – 312).

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In order for the Defendant to defeat the Plaintiffs application, hshe must satisfy the Court ourt that there is a good defence on the merits or disclose facts which are sufficient to demonstrate a defence at least generally. That is to say ...

“Machinery is provided by the rule the defendant to show caus cause why summary judgment should not be entered. A number of alternatives are open to the court. It may enter judgment for the plaintiff, dismiss the application and allow the defendant unconditional leave to defence, or it may enter judgment for part of the claim and allow the defendant to defend it in respect of the balance. Whatever order is made depends on the material put before the court. This includes consideration of the evidence of the defendant as well as of the plaintiff. Since, in an opposed application, there will be conflicting submissions and affidavits, the court must exercise a judicial discretion in reaching a decision. In the exercise of its discretion the court may grant leave to defend either unconditionally or on terms. But if the defendant opposes the application he must show cause why summary judgment should not be entered, which is usually done by filing an affidavit in reply to the plaintiffs affidavit. Of course, if the defendant disputes the plaintiffs application on technical grounds, affidavit evidence may not be necessary. But at all events the defendant should not ignore the proceedings, for a judgment entered in the defendant's absence on an application for summary judgment is not a default judgment, and consequently it cannot be set aside, except on appeal.

To successfully show cause the defendant's affidavit show a defence to the plae plaintiff’s claim and disclose the facts on which the defence is based. It is not necessary for the defendant to show a defence that must succeed. He need only show that he has an arguable defence, or, where he asserts that there is a defence on the facts, that his version of the facts shows a prima facie defence. A simple denial is insufficient, the affidavit must show the grounds for the denial”... (ibid at 313).

The Plaintiff’s Case

On the face of it, the Plaintiff’s Writ is not speciallyrsed; rather it is a general Writ of Summons. The Plae Plaintiff did not apply to amend it so that the Writ of Summons falls under Order 14, rule 1(a) of the High Court Rules. This point was raised by Counsel for the Defendants, Mr Apaniai, in his opposition to this application. Apart from that, I must say the affidavit filed by the Plaintiff in support of this application can be said to be defective also.

The Plaintiffs supporting affidavit is not altogether water - tin terms of the facts to be o be covered in the affidavit. For example, the affidavit makes no mention of the amount claimed or relief sought.

The Defendant's Case

The Defendants had actually filed their defence on 9^th

Is there a defence on the part of the Defendants?

I think there is a defence on he merits. The defence is that the Plaintiff cannot allege lege trespass because the Defendants went on his land with his permission. The Plaintiff is estopped by his conduct from alleging trespass against the Defendants.

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That isiable issue. The joint affidavit filed on 17th September 2001 by Messrs Honikulu and and Hoapue is of no relevance under Order 14, rule 1 of the High Court Rules. That sort of evidence may well be relevant at the trial proper. Some facts are also in dispute. The facts about whether or not, trespass was committed by the Defendants are in dispute. The facts about the correct number of logs extracted from Puriesi Customary land are in dispute. The facts about the receipt of $14,800 royalty are in dispute. All these would have to be ascertained at the trial. The conflict of facts on each of these issues does make each issue a triable issue. In reaching a conclusion, the Court must look for the correct ingredients for the correct recipe in each case. That is to say ...” There are three orders available on an application for summary judgment. Judgment may be given for the plaintiff, or the defendant may be given leave to defend the claim unconditionally, or subject to stipulated conditions. While it is true that summary judgment is entered only in clear cases, it is usually ordered if the plaintiff shows that he has a strong claim and the defendant fails to show that the application is irregular or that he has an arguable defence. But it is implicit in the nature of the power that it will be exercised to enter judgment for the plaintiff only if it is clear that there is really no question to be tried”.... (ibid at 312 - 313). The circumstances giving rise to summary jurisdiction were noted by Lowe, J. in Australian Can Co. Pty Ltd v Levin & Co. Pty Ltd [1947] VicLawRp 15; [1947] V.L.R 332. After reviewing the existing authorities, Lowe, J. at page 334 said ... “From all this it appears that where there is a real case to be investigated either in fact or in law, leave to defend should be given”...

Commenting on this same case at page 313 above, earned author says ...

“What emerges from this is that leave to defend should be given where there is a case, either of fact or law, to be investigated” ...

The learned author then continues, at page 3..

“It is then not necessary for the defendant to show, in an absolute sense, that he has a defence. All he need do is raise an arguable defence, or show that there is a case to be investigated. Even where the plaintiff appears to be entitled to summary judgment, the court still has a discretion, it may or may not enter judgment, depending on its assessment of the circumstance. The court may well exercise its discretion against the plaintiff where it is suspicious of his claim or where an important or difficult point of law is raised. In short it may be said that the court will enter summary judgment only in a clear case where' it is fair for the proceedings to be determined without a trial.

Both the courts and the rules recognize that there are cases where the defendant may be able to prevent the plaintiff obtaining summary judgment when he has defence that is at best dubious, or even a sham. To cater for that situation the court may grant the defendant leave to defend on terms. Those terms may relate to security for costs, time or mode of trial, or any other matter which the judge considers appropriate. Under this last category, the court may for example order the defendant to make a payment into court. Conditions relating to the payment of money impose on the defendant a degree of hardship, and they are considered to be warranted only if the defence is suspect”...

ass="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1"> Applying my mind to the facts of this case against the background of the eng principles applicable inle in cases bought under Order 14, rule 1 (a) of the High Court Rules, I am satisfied that the Plaintiffs application should be dismissed with costs. I would give leave for the Defendants to defend the action commenced by the Plaintiff. In fact, the Defendants filed their defence as far back as 9^th July 2001. The Plaintiff for his part disregarded that defence and opted for relief under Order 14, rule 1(a) of the High Court Rules. That in itself cannot be said to be wrong although in my view that should not have been done in this case. The defence filed by the Defendants on 9th" July 2001 would constitute a good reason for this application to fail. What the Plaintiff could have done was file his reply and the pleadings being deemed closed. In view of my ruling, the Plaintiff is now out of time for a reply under Order 25, rule 1 of the High Court Rules. The Plaintiff my also be out of time for taking out summons for directions. However, it is for the Plaintiff to do what is necessary to move his case along the road to justice. The order of the Court is that-

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1. the Plaintiffs application be dismisseh costs.

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2. Leave to defend is granted.

F.O. Kabui

Judge