Beti v Kama [2014] SBHC 13; HCSI-CC 429 of 2012 (4 February 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

Between:

PHALETAU BETI
1st Claimant

And:

JOHN WESLEY TALASASA
2nd Claimant

And:

HENRY HIDI KAMA, JOHN PITU, BEN RAQO, JOHN HOMELO & ESAU UVELAMANA (Purported Roviana Panel of Chiefs)
1st Defendants

And:

ANGELINA YAHATA (representing herself & her siblings)
2nd Defendant.

For the 1st & 2nd Claimants: M. Tongarutu.
For the 2nd Defendants: D. Marahare.
No appearance by the 1st Defendants.
Date of hearing: 21 January 2014
Date of Judgment: 4 February 2014

RULING

Apaniai, PJ:

Introduction.

1. This is an application by the 1st and 2nd claimants ("Applicants") seeking summary judgment pursuant to Rule 9.57 of the Solomon Island Courts (Civil Procedure) Rules 2007 ("Rules").
   
2. The Applicants have filed a Category C claim on 21 December 2012 seeking judicial review, under Rule 15.3 of the Rules, of a decision by the Roviana Panel of Chiefs ("Chiefs") dated 6 September 2012 whereby the ownership of Kidakale land (sometimes referred to as "Kidikale", "Kadalae" or "Lots 9 & 10") was awarded to the 2nd Respondent.
   
3. The remedies sought in the claim are:-
   

[1] An order quashing the Unaccepted Settlement made by the Roviana Panel of Chiefs dated 6th September 2012 in favour of Angeline Yahata, the Second Defendant, in that the document was a result of bias and ignorance on the part of the presiding chiefs and Elders, and fraud on the part of the Complainant, Angeline Yahata.

[2] An order quashing the decision of the Roviana Panel of Chiefs dated 6th September 2012 in which the ownership of customary land namely Kidakale was decided in favour of Angeline Yahata, the Second Defendant, in that the document was a result of bias and ignorance on the part of the presiding chiefs and Elders, and fraud on the part of the Complainant, Angeline Yahata.

[3] An order declaring that the Roviana Panel of Chiefs, the First Defendants, lacked jurisdiction to hear the land claim. They acted outside their jurisdiction and therefore the Unaccepted settlement and decision dated 6th September 2012 are null and void.

[4] An order declaring that the proceedings by the First Defendants on 6th September 2012 was not in accordance with the requirements of the Local Court Amendment Act 1985.

[5] An order declaring that the First Defendant were in contempt of the Western Pacific High Court Judgment and Decree in Civil case number 9 of 1971.

[6] An order quashing the decision of the Roviana Chiefs Panel dated 6th September 2012 and the Unaccepted Settlement made by the First Defendants in that some of the Second Defendant's witnesses were biased and not independent.

[7] Further orders as the Court deems fit.

[8] Costs against the First and Second Defendants.

4. In support of the claim, the 1st Applicant has filed a sworn statement on 14 December 2012.
   

Background.

5. On 6 September 2012 the Roviana Panel of Chiefs ("Chiefs"), consisting of the 1st named defendants ("1st Respondents"), heard a land dispute in Munda in relation to Kidakale. The dispute was between the 2nd Defendant ("2nd Respondent") (representing herself and her siblings), as complainant, and the 1st Applicant" (who claims to be the son of the late Evalyn Nuatali Beti, daughter of Jacob Zingihite) as defendant.
   
6. At the commencement of the Chiefs' hearing, the 2nd Claimant ("2nd Applicant") objected to the Chiefs hearing the dispute on the ground that that the Chiefs have no jurisdiction to hear the dispute because there is a case (Civil Case No. 308 of 1994 ("CC308/94")) pending before the High Court in relation to the disputed land. The Chiefs, however, rejected the objection on the basis that CC308/94 had already been struck out and was no longer on foot. Upon the rejection of the 2nd Applicant's objection, the Applicants left the hearing and took no further part in it.
   
7. The Chiefs proceeded with the hearing in the absence of the Applicants and, after hearing evidence from the 2nd Respondent's witnesses, held that Kidakale belonged to Peter Paulsen who is the father of the 2nd Respondent. The decision meant that the 2nd Respondent and her siblings are the customary owners of Kidakale. That is the decision being challenged in the judicial review claim.
   

Service of the claim.

8. The claim was filed on 21 December 2012 and, according to the sworn statement of Proof of Service by Fiona Mataote Hilly ("Fiona") filed on 24 January 2013, personal service of the claim was effected on the 2nd Respondent at Lambete Market, Munda, on 18 December 2012. The service was effected by Fiona herself.
   
9. There is, however, no direct evidence to show that personal service has been effected on any of the 1st Respondents. The only evidence purporting to show service on the 1st Respondents was Fiona's sworn statement. In that sworn statement Fiona said that she was told by the 1st Applicant that he (1st Applicant) had passed the claim to a police officer named Turukevu to serve the 1st Respondents and that Turukevu had informed him (1st Applicant) that he had served the claim on the first-named 1st Respondent, Henry Hidi Kama on 21 December 2012.
   
10. Unfortunately, Fiona's sworn statement is hearsay in so far as it is intended to prove that service has been effected on the 1st Respondents. That means there is no proof that the 1st Respondents have been served with the claim.
    
11. In the case of the 2nd Respondent, however, I find that she had been duly served. JSP Legal Services had in fact filed a Response on her behalf on 10 January 2013. Although she has filed a response, she failed to file any defence. The Applicants say that this application (for summary judgment) was filed due to the Respondents' failure to file defence.
    

Procedure for summary judgment.

12. Applications for summary judgments are governed by Rule 9.57. Under that Rule, a claimant is entitled to apply for summary judgment only where the defendant has filed a response or a defence and the claimant believes that the defendant does not have any real prospect of defending the claim.
    
13. The Rule enables the court to grant summary judgment at an interlocutory stage without the delay and expense of a full trial. However, there is authority to say that such procedure is to be used sparingly. In General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 [1] at pages 128-129, Barwick, CJ, said:-
    

"The jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the court is satisfied that it has the requisite material and necessary assistance from the parties to reach a definite and certain conclusion."[2]

The case against the 1st Respondents.

14. In this case, the 1st Respondents have neither filed any response nor defence. That being so, should the Applicants apply for summary judgment against the 1st Respondent? I do not think so. In my view, where a response or defence has not been filed, the proper procedure is to seek default judgment under Rule 9.17. In this application, the Applicants are not seeking default judgment. They are seeking summary judgment. This is wrong and I do not think I should grant summary judgment against the 1st Respondent.
    

The case against the 2nd Respondent.

15. The 2nd Respondent has filed a response but not defence. Under the Rules, the filing of the application for summary judgment against the 2nd Respondent is procedural and proper.
    
16. However, that does not mean that summary judgment must be granted. The court still has discretion whether or not to grant summary judgment. If the court is satisfied on the material before it that there is a reasonably arguable defence[3] or if the court is satisfied that there is some other reason why there ought to be a trial[4], summary judgment will not be granted[5]. In such situation, the case will be set down for trial to enable the substantive issues to be tried and arguments heard.
    
17. In this case, a sworn statement was filed on 18 July 2013 by Victor Paulsen on behalf of the 2nd Respondent. Mr. Paulsen is the brother of the 2nd Respondent. In that sworn statement, Mr. Paulsen has referred to certain decisions and documents which seem to suggest that their father, Peter Paulsen (now deceased), was the owner of Kidakale. On the other hand, the Applicants are also saying that they have court decisions in their favour which show that Kidakale is owned by them and their lines. In his written submission, Mr. Tongarutu has cited seven cases which he claims show that the issue of ownership of Kidakale has been finally settled between the parties. On the basis of those decisions, he submits that the doctrine of res judicature applies and therefore the 2nd Respondent has no reasonably arguable defence to the judicial review claim. He urges the court to grant summary judgment.
    
18. I have considered the evidence produced on this application and the submissions of counsel. Clearly the question of res judicature is an important issue to be argued. I am satisfied there are real disputes between the Applicants and the 2nd Respondent about the ownership of Kidakale and whether the doctrine of res judicature applies in this case. Copies of the decisions referred to by Mr. Tongarutu which he said give rise to res judicature need to be provided to the court in order to determine the issue properly. Rule 9.66 provides that the court must not give summary judgment if it is satisfied that there is a real dispute between the parties about a material fact. I cannot, therefore, give summary judgment as sought in this application.
    
19. There are three other reasons why I cannot give summary judgment in this application. First, since the remedies sought against both Respondents in the judicial review proceeding are the same, it would not be fair to give summary judgment against the 2nd Respondent when none is given against the 1st Respondent.
    
20. Second, in the judicial review claim, the Applicants are seeking quashing orders and declarations in respect of the 1st Respondents' decision granting ownership of Kidakale to the 2nd Respondent. These are equitable remedies which are granted at the discretion of the court. Such remedies are not normally granted in the absence of hearing evidence and arguments.
    
21. Third, bias and fraud have been alleged against the Respondents in the judicial review claim. Fraud is an issue that must be strictly proved. It would not be proper to grant summary judgment in the absence of hearing evidence on that issue.
    

Decision.

22. For these reasons, this application is refused and the following orders made:-
    

[1] The application for summary judgment is refused.

[2] The Applicants to serve the 1st Respondents with the judicial review claim and its supporting sworn statement not later than 14 February 2014.

[3] The 1st and 2nd Respondents to file their defences not later than 28 February 2014.

[4] Any sworn statement, or further sworn statement, to be relied on by the parties must be filed not later than 14 March 2014.

[5] Chapter 15 conference at 1.30pm on Monday 24 March 2014.

[6] Costs of the application shall be costs in the cause.

THE COURT

James Apaniai
Puisne Judge

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^[1] [1964] HCA 69; (1964) 112 CLR 125.

^[2] See also Golden Springs Ltd v Paia [1999] SBCA 11; CA-CAC 19 of 1998 (24 November 1999) and Allison v Medlin [1996] SBCA 3; CA-CAC 7 of 1996 (15 April 1996).
^[3] Dora v Walalau Civil Appeal Case No. 5 of 2010 (Judgment 8 October 2010) (Unreported).
^[4] See also Civil Litigation, O’Hare & Hill, 2^nd Ed, p. 198.
^[5] Miles v Bull [1969] 1 QB 258.