Kali'uae v Toto [2010] SBHC 74; HCSI-CC 380 of 2005 (14 October 2010)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 380 of 2005

BETWEEN:

SAMANI LONGARA DAUSABEA KALI'UAE
Claimant
(Representing descendants of Tafana'au of Fiuwae)

AND:

STEPHENUS TOTO
First Defendant
(Representing the primary right holders of Fiu Fiuwae)

AND:

SAMUEL SAMO
Second Defendant
(Representing the current holders of secondary -
Right Holders of Fiu Fiuwae)

Date of Hearing: 6 October 2010
Date of Decision: 14 October 2010

Claimant in Person
Fa'aitoa G for Claimant in Civil Case No. 380 of 2005
And for First Defendant in CC. No. 273 of 2008

Decision on Revival of Claim/Default Judgment/Strike Out

Goldsbrough J:

1. This is an application for default judgment. That application was filed on 27 August 2010. The original claim was filed 21 August 2008. After that no step was taken until 18 August 2010 when the claimant filed a 'notice of intention to proceed'. This was closely followed by an application that this matter be heard together with another and this application for default judgment.
   
2. Directions for the hearing of this matter were made on 19 August 2010 which set out the time by which evidence on this application was to be filed and served. Given previous failures to take steps within allocated time the order, unusually, required strict compliance.
   
3. On this application the claimant sought to rely on evidence that was not filed in accordance with the prescribed time limits. In particular he sought to rely on his own sworn statement filed 5 October 2010, the working day before this application was heard. In addition the claimant sought to rely on his own sworn statement filed on 4 October 2010 in Civil Case 380 of 2005 and of a deponent Bau filed in the same matter on 1 October 2010. Evidence on this application was required by the directions order to have been filed by close of business on 9 September 2010.
   
4. During the hearing a decision was given on the admissibility of the evidence not filed in accordance with directions and reasons given. That evidence was not permitted on the application.
   
5. Absent that evidence, the claimant has no evidence relied upon on the application which can prove service of the original claim. Absent that evidence, the claimant cannot be granted a judgment in default. There is evidence from him filed 30 August 2010 that he served the 'statement of case' on lawyers and that he told the 2nd defendant orally about the case later but no evidence of service of the claim. Looking at the filed documents it does appear that no separate statement of case has ever been filed with the Registrar and only a claim was filed on 21 August 2008. If it is the case that the reference in the sworn material to statement of case means the original claim, then that material should specify that. In the original claim there should be a statement of case. It may be that the words following the heading 'CLAIM' are actually the statement of case but again this should be made clear and not open for debate. The application for that default judgment is therefore dismissed.
   
6. For the avoidance of doubt, even were it the case that the claimant should have been permitted to rely on the evidence filed late, that evidence itself merely goes to show that the claim was served on legal practitioners and not the claimant in person. Given that no response or appearance has ever been entered in these proceedings, there is no evidence that the legal practitioners served represented these clients in these proceedings and equally no evidence that they had authority to accept service on behalf of those clients.
   
7. A claim shown to have been served on a legal practitioner without evidence that the legal practitioner was instructed to act for and had authority to accept service on the client is not properly served and cannot thereafter be relied upon for a default judgment.
   
8. Where no step has been taken in proceedings for six months or more the Court may require a party to show cause why the proceedings should not be struck out. After twelve months of inactivity this can be done without giving notice. In this case two years have gone by with no activity. The claimant gives no reason why this is the case. In response to submissions that the matter should be struck out delay did not feature, merely that the order sought would assist the court in having a clear picture of the whole case, which was understood to be a reference to the picture in both this and the related civil case 380 of 2005.
   
9. The claim in this case is for an order that the 1st and 2nd defendants, through the East Kwara'ae Council of Chiefs without delay identify and demarcate the accurate boundary and location of Urafilu land and the exact entitlement or extent of such entitlement of others related to the plaintiff (sic) to the land in Urafilu. The East Kwara'ae Council of Chiefs are not parties to this case.
   
10. The reason for this appears to be that the claimant asserts he represents descendants of persons given land. That, he maintains, is clear from a decision in 1969 of the Malaita Local Court No 36 of 1969. He further asserts that the portion of land given was not demarcated in those proceedings. He now seeks an order that the defendants, who he says are descendants of the original donors of the land, to now define the boundaries.
    
11. This case is not suitable for a default judgment even if properly served and on foot. It is not exactly clear what cause of action is relied upon for the order sought. Land owners whose rights have been determined through the mechanisms laid down for that purpose, a hearing by Chiefs, the Local Court or the Customary Land Appeal Courts are not the people who define their boundaries. Those boundaries are to be defined for them by the body which makes the determination, albeit with assistance from the parties to the land dispute. After such a determination it is not for the parties to start defining their boundaries, that power has long been taken from them and removed to the adjudicating body. If the tribunal does not demarcate the boundaries, that is a matter not for the parties but for that Tribunal.
    
12. So if the Malaita Local Court did not say which land area was given to the claimants forefathers in 1969 he cannot now obtain an order that the descendants of those people found to have given land define the boundaries now.
    
13. Even were it the case that he could properly obtain such an order against the present defendants, given that he waited two years after filing his claim without taking any step in the proceedings he should not now be allowed to revive his action.
    
14. Costs of this application for default judgment and costs of his application to revive this claim will be paid by the claimant to the defendants, such costs to be agreed or taxed.

Dated this 14th day of October 2010

GOLDSBROUGH J