Bako v Rotubule [2016] SBHC 96; HCSI-CC 75 of 2015 (28 June 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Jurisdiction
(Maina J)

Civil Case No. 75 of 2015

BETWEEN:
ADRIAN KOTI BAKO
1^st Applicant/Claimant

AND:
MS IMPORTS & EXPORT COMPANY LTD
2^nd Applicant/Claimants

AND:
IVAN ROTUBULE
Defendants

Date of Ruling: 28^th June 2016

Mr Nimepo D for the 1^st and 2^nd Applicants
No appearance for the Defendant
Mr Togamae for Respondents in CC: 199 of 2012

RULING

Maina J:
Introduction
The 1^st and 2^nd Claimants in pursuant to Rules 9.17 of the Civil Procedure Rules 2007 apply to enter the judgment against the 1^st Defendant on the ground that the Defendants have failed to file defence.

The application relates to a claim (Category A) filed on 1^st April 2015 in which the Claimants seek the following remedies:-

1. A declaration that the Defendant is not the rightful persons under the Forest Resources and Timber Utilisation Act (FRTU Act) to grant timber right over Ghebira, Tapakosi and Lupou land in pursuant to the Isabel Council of Chiefs Determination dated 1986,
   
2. A declaration that the Defendant are barred from taking any action in relation to the ownership of Ghebira, Tapakosi and Lupou land and that the Defendant have no standing by virtue of the Isabel Council of Chiefs Determination dated 1999,
3. A permanent injunction to restrain the Defendant from trespass onto Ghebira, Tapakosi and Lupou land,
4. Damages for trespass on Ghebira, Tapakosi and Lupou land,
5. Costs;
6. Such further or other orders as the Court thinks fit.
   

The claim was filed on 1^st April 2015. And according to the sworn statement of Desmond Nimepo it was served on the 2^nd April 2015. Despite the service of the claim to the Defendant did not response or filed any defence.

Preliminary Issues

At the hearing of this application, Counsel Togamae for the Defendant raised a preliminary point that this case relates to case HC/CC: 119 of 2012 and on 2^nd May 2015 both cases were mention together and some directions were made by the Court on how these two cases to be dealt with and counsels to discuss some matters. While some discussions were made or initiated there was change of counsels. On that basis, Counsel Togamae submits that there is a need that other lawyers are also to be made aware of this application.

The Court

The application for default judgment under Rules 9.17 of the Civil Procedure Rules requires proof of service and that has been made available to Court. However the matters that has raised by Counsel Togamae for the Defendant appears to have changed the process of the pleadings for the case.

It is well versed in this jurisdiction that granting of default judgments is discretionary. In determining whether or not to grant a default judgment, the Court must have regard to the nature of the claim.

If the nature of the claim is such that it would be unjust in the circumstances to enter default judgment, the Court will not enter default judgment but will set the case down for trial and the famous cases of QQQ v HTC [2003] SBHC 18; HC-CC 039 of 2003) 1 May 2003) speaks well on this default judgments principles.
With this case the record shows that this case relates to HC/CC: 119 of 2012 and Faukona J made directions for the two cases on 2^nd May 2015 and perfected on 5^th May 2015. The direction was the Court orders of 17^th February 2012 for HC/CC: 119 of 2012 and the Court orders of 19^th March 2012 for HC/CC: 75 of 2015 were varied in their terms. The order requires further disclosures and further consented directions through their solicitors. The direction simply is that the two cases is now consolidated or to be heard together.

I am also mindful to the nature of this claim as this Court is asked to make a declaration on ownership and rights over customary land which raises a fundamental question about jurisdiction. The lines of order sought relates to custom and they are within the exclusive jurisdiction of the local Court otherwise the High Court only have limited jurisdiction. This in fact raises the issue whether a cause of action in the High Court has been disclosed. On that, the Court would refuse to enter judgment against Defendants.

Declarations are equitable remedies and the fact this claim relates to customary land which is regulated by law of unwritten nature would then require full evidences before entering any judgment. While the default judgment is provided by rules it can be described in this instance for the opportunist or as a chance as they may know that this type of orders is subject to be set aside by an application.

It may be set aside because the heart of the dispute needs to be dealt with by the appropriate forums. And it is unjust at this stage to enter default judgment in the absence of hearing full evidences and arguments.

This case has been consolidated with case HC/CC: 119 of 2012 and so the process of the pleadings for the cases have changed by the order of 2^nd May 2015 and perfected on 5^th May 2015.

And further the question of whether a cause of action in the High Court had been disclosed raises issues, the Court refused to enter judgment against the Defendants.

ORDER

1. The application for default judgment is refused and dismissed.
   
2. The case is adjourned to 3^rd August 2016 for mention and further directions.
   
3. The costs of this application are awarded against the Defendants on indemnity basis to be taxed if not agreed.
   

THE COURT
.................................................................
Justice Leonard R Maina
Puisne Judge