Liliau v Tova [2017] SBHC 25; HCSI-CC 407 of 2015 (25 April 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS

(Faukona PJ)

Civil Case No: 407 of 2015

BETWEEN: MICHAEL LILIAU AND FRANCIS PEROGOLO Claimants

AND: MARK TOVA AND FAMILY Defendants

Date of Hearing: 9^th October 2016 and 6^th February 2017

Date of Ruling: 25^th April 2017

Mr B. Upwe for the Claimants
Mr P. Tegavota for the Defendants

RULING ON APPLICATION FOR SUMMARY JUDGMENT

Faukona PJ: A claim in category C was filed on 18^th August 2015. A defence and counter-claim was filed on 16^th September 2015. The Claimants claim that the Defendant and his family had trespassed onto Claimant’s property PN 191-0580-2.

2.	Rule 9.57 of the SI Court (Civil Procedure) Rules 2007 (CPR) provides privilege to the Claimant to apply for summary judgment where the Claimant believes that the defence filed does not have any real prospect of defending the Claimant’s claim.
3.	The Claimant must show pursuant to R 9.64(a) that the defendant has no arguable defence to the claim and if the Court is satisfied with the proof adduced then it can award summary judgment to the Claimant under Rule 9. 64(c).
4.	In the case of Golden Springs Ltd V Paia[1], the Court of Appeal stated at page 7;
		“The jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied it has the requisite material and necessary assistance from the parties to reach a definite and certain conclusion”.
5.	Where the Claimant has established a clear case for summary judgment, the burden shifts to the Defendant that he has a defence and must show sufficient arguable questions as to facts or law so that their defence would be regarded as real and not sham.[2]
6.	In determining whether to grant an application for summary judgment or not, the question the Court must ask itself is whether the materials before it discloses an arguable defence or whether there is a real dispute between the parties about a material fact.
7.	The purpose of summary procedure is to ensure that cases in which the statements of case are without legal basis do not reach the trial stage. That is to say, the procedure is a “cost saving mechanism[3]
	The issue:
8.	The issue in this case is one of boundary. A boundary between a registered land, PE 191-058-2 and customary land located at east of Poha river, Kakabona, West Honiara.
9.	After an acquisition proceeding was conducted on 13th January 1988, the Acquisition Officer identified and determined the lessors as Damusi, Francis Peregolo, Michael Liliau and Jerry Tada. There is no dispute as regards to those names.
10.	There were two separate appeals lodged by Vincent Kurilau and Siriako Usa against that determination. The Principle Magistrate who heard the appeals in his decision decided that he made no finding as to who owns the part of the land between Poha river and lumbukumu creek. And that land was to be excluded from the agreement to lease by the lessors and the Commissioner of Lands. It would mean the other portion; the eastern part of the creek is still under the agreement.
11.	In the later time the land east of lumbukumu creek (known to the Claimants as part II) proceeded through another acquisition process of which a determination was made on 10th November 1988. Follow on from that acquisition determination the land was subsequently registered in the names of the Claimants as PE No. 191-058-2.
12.	The dispute now is whether the western boundary of the registered land bounded by the creek as appeared in the sketch plan drawn by the Court or lumbukumu stream as also appears in the same sketch plan.
13.	The Claimant is saying the Western boundary of the registered land is the creek as drawn, whilst the Defendant is saying and pointed to the creek supposed to be where the lumbukumu stream is located now and drawn in the sketch plan. In fact lumbukumu creek is some yards west of lumbukumu stream, see sketch plan drawn by the court.
14.	The question is whether the western boundary of the registered land is lumbukumu creek or lumbukumu stream as shown in the sketch plan? The court will rely on real evidence by way of the pegs which were shown to the Court. Though peg marks had been removed or disturbed through developments and settlements, the remaining ones have clear indication and sufficient material to be considered in deciding the question of summary judgment.
15.	In reality Mr Liliau had showed to the Court party two peg marks. One is JT 30/15 almost at the creek mouth and the other is peg 10/17, some few yards up the creek. Two other pegs are more on less have been disappeared due to human habitation and development.
16.	It would appear without doubt that the peg marks almost exactly follow lumbukumu creek as show by Mr Liliau. Therefore I have no doubt the materials have shown to my satisfaction that boundary shown by the Claimants are real and true.
17.	In that instance the pig fence, water tank, a well and toilet constructed in their current location are all within the registered land own by the Claimants. I must therefore decide that those are act of trespass. I find there is no merit in the counter claim to pursue hence must be dismissed as well.
	Orders:
	1.		Summary judgment is hereby entered against the Defendant and his family.
	2.		The Counter-claim filed by the Defendant is hereby dismissed.
	3.		That the Defendant vacate possession of part of PE 191-058-2 which he and his family had trespassed with immediate effect.
	4.		That the Defendant be evicted forthwith by removing of the pig fence, water tank, the well and toilet.
	5.		Mesne profit to be assessed.
	6.		Cost of this application is to be paid to the Claimants by the Defendants.
	7.		Case adjourn to 18th May 2017 for mention and to manage the file in terms of setting a date for assessment of mesne profit.
	The Court.

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^[1] (CA 19 of 1998)
^[2] Ibid (1)
^[3] Chow V Attorney-General (2000) SBHC 31