Vakapa v Reko Enterprises [2015] SBHC 5; HCSI-CC 246 of 2011 (17 February 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona J)

CIVIL CASE NO: 246 of 2011

BETWEEN:

STEPHEN VAKAPA
Claimant

AND:

REKO ENTERPRISES
First Defendant

AND:

OCEANIA TRADING COMPANY
Second Defendant

AND:

CHRISANTO MIDOBATU (Representing Repaqa Tribal Landowners and himself)
Third Defendant

Date of Hearing: 10th February 2015
Date of Ruling: 17th February 2015

Mr W. Rano for the Claimant
Mr R. Dive for all the Defendants

DECISION ON APPLICATIONS FOR SUMMARY AND DEFAULT JUDGMENTS.

FAUKONA J: A Felling Licence to fell and extract natural forests was issued to the first Defendant on 9th April 2008. The concession lands described by the licence are Repaqa and Kovarae customary lands, North Choiseul, Choiseul Province.

2. On 8th July 2011, a claim in category A was filed by the Claimant. The major relief sought, among six, are contravention of the Environment Act and trespass into Malaengari customary land. Of course, trespass prompted damages for extraction and conversion of trees.

3. A defence was filed by JSP Legal Services on behalf of the first Defendant on 18th August 2011. On 18th October 2011, a notice of change of advocate was filed by BETS Legal Services, a new advocator for both the first and the second Defendants.

4. On 28th September 2011, interim restraining orders were issued against the first and second Defendants. On 12th February 2012, the Court refused to grant leave to vary paragraph 1 of the interim restraining orders.

5. On 19th October 2011, the third Defendant filed an application seeking leave of Court for joinder. On 3rd November 2011, by order of the Court, the third Defendant was a joinder as third party to these proceedings.

6. On 21st July 2014, the Claimant filed an application for Summary Judgment against the first Defendant pursuant to Rule 9.57, and a Default Judgment against the second and third Defendants pursuant to Rule 9.17.

Application for Default Judgment

7. Rule 9.17 sets out three requirements, which must be proved before default judgment can be entered against a Defendant. Firstly, where a defendant failed to file and serve response or a defence within time then the claimant may apply to Court for default judgment. Second situation is where a defendant files a response but does not file and serve a defence within time, then the Claimant may apply for a default judgment. In both situations, the Claimant must file a sworn statement as proof of service before applying for a default judgment.

8. On 21st July 2011, advocate for the first and second Defendants, Mr Etomea filed a notice of appearance. On 18th October 2011, Mr Etomea filed notice of change of advocate that he now represented the first and the second Defendants.

9. After the order for joinder of third Defendant was made on 3rd November 2011, the Counsel who advocated and who was present at the time seemingly ignored or overlooked the significant part of the civil process that is filing of a defence. There was nothing on record. The same can be noted from Counsel Etomea; there is nothing on record that shows a defence was filed on behalf of the second Defendant.

10. In Court, the Counsel advocates for all the Defendants fail to respond to application for default judgment. He submits that he was not instructed to make any submissions in that instance. It is quite difficult to reason out such response; however, two optional outcomes may draw some conclusion. One that the Counsel is not prepared before coming to Court, or the application has been conceded with, having well versed with the fact that no defences had been filed at all, and no point in defending the truth. In any event, I must therefore grant the order entering default judgment against the second and third Defendants.

Application for Summary Judgment

11. This application is focussed on the defence filed by the first Defendant. Rule 9.57 states quite plainly that the Claimant may apply for summary judgment where the Defendant has filed a response or defence but the Claimant believes that the Defendant does not have real prospect of defending the claim.

12. In this case, a defence was filed on 18th August 2011. The terminology "real prospect of defending" is an art subject to assessing the strength and the veracity of facts as stated in the defence to that of the claim. Where a defence has disclosed or provide some facts, though weak, which the Court may determine at trial, is not a ground for issuing summary judgment. Unless the defence is devoid of all merit or cannot possibly counter-man the claim.

13. The magnitude of the claim premises on the customary ownership of a portion of land namely Roghavakolo block within Malaengari customary land. The Claimant claims that Malaengari customary land was given to his landholding group by decision of Customary Land Appeal Court (CLAC) on 17th November 1977. The boundaries of Malaengari land was well defined by the CLAC as from bago river in the eastern end, Paparasi and Rocho rivers on the western end, Hurama stream on the southern boundary and high water mark on the coast line.

14. Further, the ownership and boundaries declared by the CLAC was upheld by the High Court in Land Appeal Case No. 1 of 1978. Further, affirmation was made by the Varisi House of Chiefs on 22nd and 23rd of October 2004, who actually heard and surveyed the boundaries.

15. The nature of this application demands a thorough judicial analysis of the defence in order to make a finding within the scope expressed by the terminology as "real prospect of defending". It does not take further moment to note that the defence, per see, is mirrored on two facts. One, that the third Defendant is the owner of Repaqa customary land and that Roghavakolo portion of land claimed by the Claimant is situated within Repaqa customary land. Therefore, any claim of encroachment into Malaengari customary land is denied. The argument presupposes that the logging operation was within the bounds of the concession lands.

16. The defence, as it seems, desirous to reflect a picture that the boundary between Repaqa and Malaengari lands has yet to be decided. There is reference to the order made by His Lordship Kabui J (as he was then) on 2nd April 2004. As a result, a report was compiled by a Forestry Officer. With the assistance of the report, His Lordship refused to grant the interim injunctive orders. One fascinating occurrence was that the Forestry Officer who compiled the report admitted in evidence that he did not know where Hurama stream was. So by 2004, the Southern boundary of Malaengari land remains under dispute. And that was the view of His Lordship Kabui J.

17. After His Lordship's ruling on 3rd September 2004, the Varisi House of Chiefs heard the boundary dispute between Malaengari and Repaqa customary lands on 22nd and 23rd of October 2004.
18. A number of sworn statements filed by the Chiefs who sat as panel members of Varisi House of Chiefs denied formulating the decision now tendered as evidence in this Court. If there were discrepancies in the manner in which the Chiefs' panel conducted the process, including the making of the decision, then any aggrieved party should challenge the decision by filing a referral case with the appropriate Local Court. In the meantime, there is no evidence of a referral case. It worth's nothing arguing rights and expressing one's dismay at a Chief's decision on paper and in sworn statements, but failed to challenge the decision in a rightful forum. By failing to act, and do the right thing, does not resolve any grievances.

19. Also noted is a deed of settlement executed by concern parties including the third Defendants. Later the evidence recited in the deed was retracted by way of a termination letter.

20. Apparently, I could be able to perceive that there is a game played in this particular case. Nothing conceivable will materialize if the game is continued to be played in a manner as it was in the past decade.
21. Ultimately, the one and significant fact that underlines the entire dispute is, if logging operation had encroached into the boundary as specified by the CLAC as per map marked green Exh. SV1 attached to Claimant's sworn statement, and which, also implicated in a map in blue with yellow edge, and extracted log and converted them for export, then there is without doubt a trespass had been committed. There is no evidence to the contrary that will rebut the boundary made by Court other than literal denial. Various views may attribute facts indifferently but those will remain as they are without proper test in a legally instituted forum. In this case, the Defendants may adduce volumes of evidence to negative the Court decision, but if they are not used in proper forum, they will not be considered. I must therefore grant the application for Summary Judgment.

Orders:

1. An order that Summary Judgment is entered for the Claimant against the first Defendant.

2. An Order for a Default Judgment is entered against the second and third Defendants for failure to file defences.

3. Damages to be assessed on a date to be fixed.
4. Cost of the Claim and this application to be paid by the Defendants to the Claimant.

THE COURT.