Saru v Maelimani [2014] SBHC 99; HCSI-CC 369 of 2011 (8 July 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

PAUL SARU (representing the registered trustees of P/N 191-005-5 and P/N 152-005-7 and beneficial owners of Una'abu land Plan 2310).
Claimant

AND:

BARNABAS MAELIMANI (representing himself, Family members and relatives residing on Una'abu land).
1st Defendant

AND:

MARTIN AU (representing himself, Family & relatives residing on Una'abu land).
2nd Defendant

AND:

JACK SIPOLO (representing himself, Family
3rd Defendant

Mrs. L. Ramo for the Claimants/Applicants.
Mr. W. Rano for the 1st and 3rd Defendants/Respondents.
No appearance for the 2nd Defendant.

Date of hearing: 10 June 2014.
Date of Judgment: 8 July 2014.

RULING
Apaniai, PJ:

Preliminary issue.

1. This is an application by the claimant for summary judgment.
   
2. At the commencement of the hearing of the application Mr. Rano of counsel for the 1st and 3rd defendants raised objections to the admission of the sworn statements by Paul Saru filed on 18 April 2012 and 13 August 2012 on the ground that they did not comply with Rule 9.57 of the Solomon Island Courts (Civil Procedure) Rules 2007 ("Rules"). He seeks orders that the application be dismissed for the non-compliance of the sworn statements with the Rules.
   
3. I rejected the application on the basis that Mr. Rano had not raised his objections with Mrs. Ramo before the hearing or warned her that he would be raising the objections at the hearing. Ambushing parties to proceedings with sudden applications such as this, especially when the application seeks a dismissal of a substantive application on the ground of procedural irregularities or for want of form, must be discouraged.
   
4. As a matter of proper protocol and procedure, any objection which counsel wish to raise at the hearing of an application or at trial should be raised with the other party or parties at the earliest opportunity before the hearing to enable the other party or parties to prepare themselves adequately to respond to such application. If necessary the issue should be raised by way of a formal application so that a determination of the issue can be obtained before the actual hearing of the substantive application. This is so especially where the application seeks to dismiss the substantive application on the grounds of those irregularities.
   
5. Since Mr. Rano has raised the issue of non-compliance with Rule 9.57, I must address that issue. Rule 9.57 allows a claimant to apply for summary judgment where the defendant has filed a response or defence but the claimant believes that the defendant does not have any real prospect of defending the claimant's claim.
   
6. Under rule 9.59, a sworn statement filed in support of the application must verify the facts stated in the claim; state that the claimant believes that there is no defence to the claim; and, state the specific orders sought by the claimant.
   
7. In his sworn statements filed on 18 April 2012, Paul Saru has deposed to the fact that he and his family are the owners of Una'abu land; that they are the registered owners of that part of the Una'abu land which was registered as P/Nos. 152-005-5; 152-005-6 and 152-005-7 and which are currently on lease to the Malaita Province; that the boundary of the unregistered part is that as demarcated or described in Plan 2130 which, in Land Appeal Case No. 1 of 1979 between Saru v Maelimanu, was adjudged by the High Court to contain the true boundary of the Una'abu customary land. In his sworn statement filed on 13 August 2012, Mr. Saru has provided a copy of Land Appeal Case No. 1 of 1979 which recognised the boundary of the Una'abu land.
   
8. It is true that both sworn statements have not specifically stated that the claimant believed that there was no defence to the claim as required under rule 5.59. However, I am satisfied the reference by the claimant to Land Appeal Case No. 1 of 1979 as having established both his family's ownership of the Una'abu land and the boundary of the Una'abu land sufficiently suggests that he believes that the defendants do not have any defence to the claim. Similarly, although the sworn statements do not state the specific orders sought by the claimant, those orders have been sufficiently stated in the application for summary judgment itself.
   
9. In my view, these defects are matters of form rather than substance. For those reasons, I reject Mr. Rano's objection and application to dismiss the Applicant's application.
   

The application.

10. I now turn to the application for summary judgment. The application is made under rule 9.64 of the Rules which govern the granting of summary judgment.
    
11. The defendants have filed a joint defence on 2 November 2011, however, the claimant says that the defendants' defence has not disclosed any arguable defence, hence, he is entitled to summary judgment.
    

The law.

12. To grant summary judgment, the court must be satisfied on the balance of probabilities that the defendant has no arguable defence or that there is no real prospect of the claim succeeding and that there is no need for a trial of the claim. Under rule 9.66, the court must not grant summary judgment if there is a real dispute between the parties as to a material fact.
    
13. In determining whether there is an arguable defence, the courts have consistently said that it is not necessary for the defendant to show a defence that must succeed. All that the defendant needs to show is 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[1].
    
14. In other words, to defeat the application for summary judgment, the defendant must show that he has a defence that is worth investigating. That means the court will enter summary judgment only in a clear case where it is fair for the proceedings to be determined without a trial[2]. This view is supported by rule 9.66 which obliges the court not to enter summary judgment where it is satisfied that there is a real dispute between the parties as to a material fact. In Pina v Awao[3], I expressed the view that under rule 9.66, where the court is satisfied that there is a dispute between the parties as to a material fact, summary judgment will not be entered even where no arguable defence has been disclosed.
    

Issue.

15. The issue in this application, therefore, is whether or not the defendants have raised an arguable defence which is worth investigating at trial.
    

The claim.

16. In the claim, the claimant asserts that he and his family are the owners of Una'abu customary land. His claim is based on a decision of the High Court in Land Appeal Case No. 1 of 1979 ("CC 1/79") and a document called Plan 2130 which, he alleges, describes the boundary of the Una'abu land and which, he further alleges, has been accepted by the High Court in CC 1/79 as a true description of the correct boundary of the Una'abu customary land. He claims that the 1st, 2nd and 3rd defendants are residing within Una'abu customary land without their consent and have removed trees therefrom without their consent. He claims permanent injunction to restrain the defendants from residing or remaining within Una'abu land as well as damages for trespass.
    

Defence.

17. In their defence and counter-claim, the defendants deny that the claimant is the owner of Una'abu land. They also deny residing within the area described in Plan 2130. They also deny removing any trees from Una'abu land. They allege that the plot of land bought by Saru was a small plot of land located near the sea and not inland as the claimant is alleging. They also referred to Native Land Appeal Case No. 2 of 1973 in which the High Court had confirmed a decision by the East Kwara'ae Native Court made on 18 July 1972 whereby the ownership of Una'abu was awarded to Maelimani and that the area sold to Saru by Maefou in 1960/1963 was only a small area.
    
18. There are also other matters raised by way of defence by the defendants, however, the defences referred to above are sufficient to satisfy the requirement that the defendants have arguable defence which need to be investigated at trial.
    

Decision.

19. I am satisfied the defendants have raised arguable defences. It follows that the application is dismissed with costs against the applicant on standard basis to be taxed if not agreed.
    
20. Orders accordingly.
    

THE COURT

_________________________
James Apaniai
Puisne Judge.

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^[1] Te’eu v Sanau & Others (CC. No. 90 of 2001); Ross Mining (SI) Ltd & ano. V Roni & Thuguvoda (CC. No. 294 of 1997); Golden Springs Ltd v Paia (CA 19 of 1998).
^[2] Australian Civil Procedure by Benard C Cairns at p. 313, approved in Te’eu v Sanau [2001] SBHC 74; HC-CC 090 of 2001 (16 October 2001).
^[3] HCSI-Civil Case No. 228 of 2012.