Mark v Midobatu [2015] SBHC 98; HCSI-CC 130 of 2008 (17 November 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)

Civil Case No. 130 of 2008

BETWEEN:

REV. GRAHAM MARK AND MYLEEN ARISIMAE
GRAHAM
(Representing Malaengari Landholding Group)
Claimants

AND:

CHRISANTO MIDOBATU, GABRIEL SEMA,
JORDAN LULUMUBATU AND DAVIDSON RATO
(Representing Repaqa Landholding Group)
First Defendants

AND:

REKO ENTERPRISES
(Holder of Logging Licence Number A10223)
Second Defendant

AND:

BULACAN INTERGRATED WOODS (SI)
INDUSTRIES COMPNAY LIMITED
(Logging contractor under Logging Licence
No. A10223)
Third Defendant

Date of Hearing: 17th November 2015
Date of Ruling: 17th November 2015

Mr W. Rano for the Claimants
No one for the Defendants (1) – (3)

RULING ON APPLICATION FOR SUMMARY JUDGMENT

Faukona PJ: This application was heard on 17th November 2015. At the end of the submissions I made a ruling and promise to formalise the ruling by way of translating it into a written form with reasons.

2. An amended claim was filed on 21st May 2008 with a sworn statement in support deposed by Mr Pukakoqoro and filed on 8th May 2008.

3. There are twelve reliefs sought in the amended claim including costs. They are in the terms of, permanent injunction, account for profits wrongfully gained, general and exemplary damages for trespass, conversion of trees, general and exemplary damages for loss of:

(a) intrinsic value of forest

(b) aggravated erosion

(c) loss of recreational use of land and water

(d) degraded water supply and

(e) emotional attachment to forest, land and water resources.

4. The Defendants had filed their defences on 17th June 2008.

5. In this application, orders sought are in the nature of judgment be entered for the Claimants in accordance with the reliefs sought in the amended claim filed on 21st May 2008; damages to be assessed on a date to be fixed; and costs incidental to the claim and this application are awarded to the Claimants.

The Counsel on record who filed the defences was Mr Presley Watts of Watts and Associates Legal Services. Since Mr Watts had died some years ago, the Defendants were representing themselves. The first named Defendant had appeared on two previous occasions (on 30th October 2014 and 4the June 1014) representing the first defendants. Thereafter there was no personal or legal representation until hearing of this application. There was no representation at all for the second and the third Defendants. In fact they seemed to be inactive after the death of Mr Watts.

7. Twist of events occurred when the Claimant's Counsel filed this application for summary judgment on 21st July 2014. His personal rational is that the cases for the defendants are not capable of succeeding. It is a belief formulated after perusing the defences and concluded that defence by the Defendants (1) (2) and (3) cannot be succeeded. Such conclusion is supported by Rule 9.57 which grants the Claimant right to apply to Court for a summary judgment, where the defendant has filed a defence but the Claimant believes that the defendant does have any real prospect of defending the Claimant's claim.

8. Upon reading of the materials files, the issue boils down to landownership and boundaries of malaengari customary land. However, those two issues appeared to have been determined by the CLAC on 23rd November 1977. The CLAC expressly defined the boundaries of malaengari land as bounded by baga river on the eastern side, the paparasi and vacha rivers on the Western side, the hurama stream on the southern boundary and the high water mark on the coastline.

9. Some years later after the High Court refused to grant injunction orders applied for by the Claimants, a subsequent hearing was conducted by the Varisi House of Chiefs on 22 and 23rd October 2004. The issue was the boundary between repaqa land and malaengari land. Apparently, it affirmed that the dispute about the boundary was between repaqa tribe and malaengari tribe. Eventually the Varisi House of Chiefs concluded in its decision by affirming that the boundaries identified by the CLAC were true and correct.

10. There is material evidence available that the first Defendants denied being a party to the Chiefs hearing; they were never summoned. However, they became a named party after they intervened to halt the survey. In any event, Mr Midobatu admitted in his sworn statement filed on 18th June 2008 that the decision of CLAC was unambiguous as to the boundary. It was the subsequent Varisi House of Chief decision that was creating confusion.

11. From this court's perception there was no confusion at all. The decision of the Chiefs concerning malaengari boundaries were exactly the same as the CLAC decision, in fact it followed the CLAC decision without any subtraction or addition.

12. Should the first Defendants aggrieved of the Chiefs decision they could have referred a dispute to the appropriate Local Court. Since then there was nothing done. On the strength of the case of Muna V Billy[1] which profoundly stated that a decision by the Chiefs afforded a status of a certificate of ownership.

13. The Claimants' claim in this case is in the nature of trespass, conversion of trees, general damages and costs. The boundaries according to both forums which vested with statutory power to determine issues of ownership and boundaries, seems to be plain with clarity. Once a boundary is demarcated by a stream, or river, forms a natural feature which can be easily identified. Where a person with his activities physically crosses over the natural feature, it can be easily verified of the physical translation. This can be precisely sighted at the time of assessment where assessors physically view the trespass and damages on the ground.

14. From the evidence I noted the Defendants do not have any defence at all to the claim nor has any prospect of their defence being succeeded. The major issue they relied on as ownership and boundary of malaengari land had been finally determined by the CLAC and Varisi House of Chiefs.

15. The deed of settlement executed by the parties on 3rd January 2008 was a ticket for the Defendants to enter malaengari customary land, a piece of evidence which affirmed the ownership by the Claimants. Unfortunately the deed of settlement was terminated by the first Defendants on 17th April 2008. The effect of such document was a passage allowable by the landowners so that the Defendants could access by road through the Claimants' land. Engaging in such transaction reflected by way of affirmation that the Claimants are the true owners of malaengari customary land. The Defendants have to pay to obtain a licence to enter into the land.

16. In the final analysis, I am satisfied on the evidence embodied in the material, together with the submissions made by the Counsel for the Claimants. I must therefore grant the application and enter summary judgment against all the Defendants.

Orders:

1. Judgment is hereby entered for the Claimants in accordance with the reliefs sought in the amended claim filed on 21st May 2008.

2. Damages to be assessed on a date to be fixed.

3. Costs are awarded to the Claimants in respect of the claim and this proceeding.

The Court

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