Honiara No. 1 Wholesale Ltd v Kiota [2016] SBHC 45; HCSI-CC 80 of 2014 (11 April 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 80 of 2014

BETWEEN:

HONIARA NO. 1 WHOLESALE LIMITED
Claimant

AND:

CORINA UNI KIOTA AND ALDRIN KIOTA
Defendants

Date of Hearing: 4th April 2016.
Date of Ruling: 11th April 2016.

Mr. P. Afeau for the Applicant/Claimant.
No appearance for the Defendants.

KENIAPISIA; PJ:

RULING ON CLAIMANT’S APPLICATION FOR SUMMARY JUDGMENT

1. Claimant filed an application for summary judgment (SJ) on 24/02/2015, in light of the defendant’s defence filed 11/02/2015. Claimant relies on the sworn statement (ss) by Mr. Eddie Keni filed 24/02/2015. The ss was filed directly in support of application for SJ, as required by Rule 9.59 (a) – (c) of the Solomon Islands Courts (Civil Procedure) Rules 2007 (“the Rules”).

2. Application for summary judgment or summary judgment is one of the ways to bring to an early ending, a proceeding without going to trial. Early endings to proceedings are governed under Chapter 9 of the Rules. Relevant to this application are Rules 9.57 – 9.66.

3. It would appear from the said application that the claimant is applying for SJ on the basis of the defendant’s defence – that was filed on the 11/02/2015. The claimant/applicant says that it believes the defendant’s defence has no real prospect of succeeding after the defendant filed its defence. Therefore, there is no need for trial of the claim or part of the claim.

4. We see in the Rules the principles to apply in deciding whether or not to grant SJ without trial. These include: SJ will not be granted if there is an issue for investigation or if there are real issues of contention then a trial is warranted to test those issues^[1]; whether the party opposing SJ has an arguable defence; or in the claimant’s perspective the defendant has no arguable defence^[2]; or in the defendant’s perspective, the claim has no real prospect of succeeding^[3]. To succeed in an application for SJ, the applicant’s case must be based on clear evidence supporting the facts pleaded in a claim or defence^[4] as the case may be. This is why the rule calls for the applicant for SJ or the opposing party to file a ss verifying the facts in the claim or defence as the case may be. Case law authorities^[5] have also applied these principles. With these principles in mind, I now consider the application for SJ.

5. The claim in the main is for eviction against the defendant. That the defendants are tress passing on Parcel Number 192-004-61 (“PN 61”), a registered land owned by the claimant in the Aligator Creek/Tenaru area. The claimant has produced clear evidence on its ownership claim.^[6] Next is a boundary survey carried out by the relevant department of the government has established that the defendants have constructed buildings inside the boundary of PN 61.^[7]

6. The defence and supporting ss filed by the defendant in opposing the application for SJ in the main have admitted that the claimant is the owner of PN 61. Instead the defendants are saying that they have built on a separate parcel that adjoins the claimant’s PN 61. That separate adjoining parcel is Parcel Number 192-004-313 (“PN 313”). Defendants say in defence that they are residing on PN 313 by consent from the owner - Solfish^[8].

7. When I examined the claim in light of the defendants’ defence, it is my considered view that the defendants do not have any real prospect of defending the claimant’s claim. Claimant has produced clear evidence enabling the Court to safely conclude the defendants do not have any real prospect of defending the claimant’s claim. I repeat and reaffirm the claimant’s clear evidence as discussed in paragraph 5 above.

8. With this clear evidence, there is no more live issue that warranted investigation at trial. I can therefore enter SJ for the claimant on its entire claim.

9. What would appear to be a live issue for trial are allegations by the defendants on the non-impartiality and true independence of the Surveyors report on the boundary of PN 61. Defendants say that the report is not independent and that an independent report should be called for. Defendants say that the biased report had inflated the claimant’s boundary over PN 61 to extend illegally into PN 313, because the defendant’s houses are actually inside of PN 313. This does not become a live issue for trial either. I consider that the most impartial/independent office to carry out a credible and reliable identification of the boundary of the disputed property (PN 61) is the Chief Surveyor of the relevant department of the Government. I say this because in my respectful view, the office of the Surveyor General is the office that can speak with authority on boundary of registered lands in Solomon Islands. This office is mandated by law^[9] to keep all records of maps and boundaries of all registered land in this country. I would think that this office should be the most independent office to speak with authority and accuracy on the boundary of PN 61. I also noted Section 97 of the Lands and Tiles Act (Cap 133); which speak about the authority of this office, whenever a dispute as to boundary of registered land arises. On the materials before me, I have not seen evidence that puts the impartiality of this office into question. For instance, the defendants have not produced evidence to say that the Chief Surveyor or members of his team are related to the claimant or are bribed by the claimant to carry out the survey and to produce the report the way it was produced. Similar allegations were made against Dausabea, the former owner of PN 61. But then I noted that the boundary survey was made in January 2014, at the request from new owner (claimant) – confirming trespass by the defendants. Even the defendants’ allegation about the white line created after survey affecting boundary of PN 313, does not hold water against the clear documentary evidence at CK 3 of ss by Corinna Kioto filed 5/08/2015^[10].

10. In all that I said above, it is my respectful view that this proceeding should be terminated early via SJ^[11]. The Court is satisfied to give SJ pursuant to Rule 9.64 (a), (b) and (c), because the defendants have not raised any arguable defence worthy of investigation at trial. Accordingly, the application for SJ is granted.

11. Orders of the Court:-

11.1. Summary Judgment reliefs sought in the application filed 24/02/2015 are granted.

THE COURT

JOHN A. KENIAPISIA
PUISNE JUDGE

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^[1] See Rule 9.66.
^[2] See Rule 9.64 (a).
^[3] See Rule 9.61 (b) and Rule 9.64 (a).
^[4] See Rule 9.59 (a) or Rule 9.61 (a).
^[5] See the cases of: John Brown & Others –v- New World Limited – CC 66/2013 and Solomon Islands Home Finance Limited –v- Jack Kaota & Another – CC 259/2012.
^[6] See ss by Eddie Keni filed 24/02/2015 at Exhibit EK 1 – Fixed Term Estate Register – shows claimant as the owner of PN 61.
^[7] See ss by Eddie Keni and Isa’ac Ngele filed 2/03/2015; especially the survey report carried out by the Chief Surveyor and his team “Exhibit IN” in Ngele’s ss.
^[8] See defense at paragraph 4.
^[9] See Section 93 – 100 of the Lands and Titles Act (Cap 133)- Division 3- Maps, Parcels and Boundaries.
^[10] Registrar General’s office says in the letter at Exhibit CK 3 the white line did not change the current boundaries of each parcels – see second last paragraph of the letter.

^[11] Though I am aware that this kind of termination should only be sparingly used, I think this is one of the rare clear cases to invoke this early termination via SJ; because the requisite materials are clearly pointing in that direction.