Wasi v Sanau [2018] SBHC 14; HCSI-CC 80 of 2015 (31 January 2018)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)
Civil Case No: 80 of 2015

BETWEEN: STEVEN WASI
(Representing the rightful owners of Arapaumora
And Taniniakaro lands) Claimant

AND: JOHN SANAU, CYPRIANO TAMORA, BEN
HOROI and CHRIS WATE

AND: JOHN HOU, WALTER HIKU, KELLY HOU,
GIBSO OASANAU and CHRIS WATE
(Carrying on business or trading as SOUTHERN
FOREST INDUSTRY)

AND: GLOBAL (SI) LTD Third Defendant

Civil Case No: 244 of 2015.

BETWEEN: JEFFREY ISIOLA, LABAN HONIMAE,
KEMUEL KOKEPAINE, GIDEON WATELIU,
and DAVID AHUKELA.

AND: CHRIS WATE First Defendant

AND: SOURTHERN FOREST INDUSTRY Second Defendant

AND: GLOBAL (SI) LIMITED Third Defendant
Date of Hearing: 25^th October 2017
Date of Ruling: 31^st January 2018

Mr M. Ipo for Claimant in Civil Case No: 80 of 2015
Mr B. Upwe for Claimants in Civil Case No. 244 of 2015
Mr D. Nimepo for all the Defendants in both cases

RULING ON TWO APPLICATIONS FOR DEFAULT JUDGMENTS

Faukona PJ: There are three civil suits filed in respect of certain but same subject lands. By order of Court on 2^nd September 2015 all the three cases were heard consolidated.

2.	These applications are for default judgment in respect of two of the three cases, CC 80 of 2015 and CC 244 of 2015.
	CC 244 of 2015:
3.	This application is for default judgment and was filed by the Claimants on 14th March 2017 pursuant to Rule 9.17 of S.I Courts (Civil Procedure) Rule 2007(CPR).
4.	The claim was filed on 11th June 2015, and an amended claim was filed on 30th June 2015. The original claim was served on all the Defendants; however, there is no material evidence to show that service was effectively done on all of them.
5.	Despite lack of evidence to show effective service, a conditional response was filed by the Counsel for all the Defendants on 23rd June 2015. In the conditional response Counsel for all the Defendants acknowledged receipt of the claim and hence entered conditional response. I must accept that service must have been done effectively as the response filed reflects confirmation.
6.	For reasons known to the Claimants alone an amended claim was filed on 30th June 2015. There is evidence in the materials that only the third Defendant was served but not the first and the second. However, I noted there was an application for substituted service but there is no trace whether that application was granted.
7.	In any event, the significant part acceptable, is that a claim was filed on 11th June 2015 and twelve (12) days later a conditional response was filed by the Defendants, in between was a date of service which though unprecise can be accepted.
8.	The rational, as it seemed, for filing the conditional response was to pave the way for the Defendants to file an application to strike out which was filed on 25th June 2015, and as amended on 28th July 2015. It was anticipated that after the court decided on the application, if it was not in their favour, then a defence will be filed.
9.	In my respectful view that scenario has not been provide for by the Rules. Rule 5.8 makes provision for response including conditional or unconditional response. In either case, taken to constitute submission to the jurisdiction of the Court. If conditional response is subjective attested to filing of a defence after the conditional responses been fulfilled or dispose of, then there must be a special form provided for in schedule 2 Part B. In such circumstance, there is no specific rule provided for. In whatever condition, in my view, must carry the acknowledgment and a defence be filed within 28 days from the date of service, that is submission to the Court’s jurisdiction.
10.	There is nothing provided by the Rules that defence filed after an application is heard, treated as a conditional response. That is strange and a new invention as it reveals.
11.	In any event, there is no dispute the defence was filed late. In fact it was filed on 11th April 2017, somewhat one year and ten months after it was reserved, and sixteen months after the defendant’s application to strike out was dismissed.
12.	The Counsel for the Defendant had admitted in his submissions that he was partly to be blamed, and made references to many other applications which concern these proceedings of which had engaged his time and effort.
13.	On the entire case the Counsel counted that despite setbacks, the defence was finally filed. However, it was filed a month after this application for default judgment was already filed.
14.	What has now left for the counsel to achieve is merely urging the Court to exercise its discretion pursuant to Rule 9.17 to consider the issue whether there is merit in the defence or not.
15.	I have read the defence thoroughly and noted several issues. In respect of fraud alleged in paragraph (2) of the defence that has been taken care of by Civil Case No. 171 of 2016 filed by the first Defendant. If that case was meant to specifically deal with that issue, then it would be a repetitive to entertain that in this case again. Thoughtfully, that should be a prudent approach in my view, because it concerns the same parcel number 209-03-6.
16.	In respect to arapuamora customary land, there were two Chiefs decisions. On 18th September 2014, the Aulutalau Council of Chiefs determined that the Claimant in CC No. 80 of 2015 plus others were the owners of the arapuamora and aruaitoro customary lands. Again on 16th September 2015 the Poikera House of Chiefs determined that the first, Defendant was the owner of arapuamora Customary land. That decision virtually puts the Claimants in this case out of touch.
17.	In both determinations the aggrieved parties had never filed a referral case with the appropriate local Court.
18.	In conclusion, the claim in this case premises on trespass and damages. The Claimants rely on lands documents which affirm their trusteeship ownership inclusion as owners of Lots 6 on Parcel Number 209-006-6. That documentary evidence undoubtedly cannot be denied, hence CC 171 of 2016 which is still pending, pave the way for the parties to argue the element of fraud alleged in obtaining and appointing trusteeship to the parcel of land.
19.	On the question of ownership of arapuamora customary land the chiefs had decided in favour of the first Defendant. Hence render the rights of claim to the land by the Claimants questionable. In addition, that determination has recognized the rights of the first Defendant as prevalent over the Claimants. Until a referral is filed in the Local Court and a determination made in-differently, the first Defendants’ claim of ownership still prevail.
20.	Ultimately I find there is some merit in the defence. It is clear serious issue are rose which urge this court to exercise discretion under R5.42. As justice in this case is of paramount importance, I must hereby exercise discretion to reflect a fairness approach. Therefore I refuse to endorse the default judgment reliefs prayed for.
	Civil Case No. 80 of 2015:
21.	In respect to CC. 80 of 2015, the claim which was filed on 30th April 2015, seeks reliefs in the nature of trespass, conversion, damages and permanent injunction. The rational upon which the claim was filed premised on the Aulutalau Council of Chief’s decision made on 18th September 2014, in favour of the Claimant and party.
22.	This application concerns a failure by the Defendants to file defence in accordance with Rule 5.37 (d). The sworn statement deposed by Mr Aneseto Maeai that on 22nd May 2015 between 7 am and 9 am he left copies of the claim and other documents to Henry Lamani who was the Police Officer in Charge of Maka Police Station, who was instructed to effect service on Chris Wate, one of the named first Defendants.
23.	Unfortunately, the Police Officer in charge of Maka Police Station did not file any sworn statement as to service. Secondly the instruction that service will be done only on the first Defendant was a wrong instruction. Each Defendants, in particular where there is multiple persons as one defendant, all must be served with the documents individually see Rule 6.0 to Rule and 6.29. Therefore I cannot accept that service was done effectively on the first and second Defendants.
24.	In respect to service done on the third Defendant, there is no doubt had been complied with Rule 6.30, therefore must be accepted as effective service.
25.	This case concerns three different sets of Defendants. Where only one Defendant is properly and effectively served, would be improper to grant default judgment against him. The Claim is against all Defendants. The application for default judgment is against all the Defendants as well. Should the entire Defendants found liable, at the end of the trial, then legally they should all be responsible equally for any remedy the Court may order. In that instance, it would be prejudice to grant default judgment against one party and allow others to proceed to trial. To be fair the parties to the proceeding should remain intact, in particular all the Defendants to defend the claim at trial.
26.	In the midst of ineffective services, the Defendants jointly filed a defence on 15th February 2017, one year and nine months after the purported services were done. I am urged to consider the merit of the defence considering whether to grant default judgment or not.
27.	I have studied the defence thoroughly. The major and appropriate issue raised was the determination by the Poikera House of Chiefs.
28.	What transpired is that, the Aulutalau House of Chiefs had made its determination earlier on 18th September 2014, in favour of Mr Steven Wasi and party, the Claimant in this case. The determination was against Mr Chris Wate, Mr John Sanau and others.
29. 30.	I noted before the Poikera House of Chiefs presided to determine the question of ownership there were notices dated 25th May 2015 issued to the Claimant in CC 80 of 2015 and to all the Claimants in CC 244 of 2015 to attend on 21st July 2015 for the hearing. Those parties failed to attend hence a determination was made in their absence. There are arguments in respect of the two House of Chiefs, in relation to jurisdiction and location, composition and recognition. Those are issues preliminary in nature and ought to be submitted to the Local Court for determination on referral. Any complaint must be heard in the Local Court and not made to any outside institution.
31.	This leads to the pivotal fact that the Court can only decide the issue of trespass and damage where a Court decision is finally made in favour a Claimant who files the claim.
32.	In this case two Chiefs decisions are still hanging on a pendulum. There is need for a Local Court to hear claims and grievances of all the parties in all the cases.
33.	It is pertinent to adjourn the case generally to allow parties to file referral to the Local Court respectively rather than attempting to deal with the issues in this court at this stage.
	Orders:
	1.	Refuse to grant default judgment in Civil Case No. 80 of 2015.
	2.	Refuse to grant default judgment in Civil Case No. 244 of 2015.
	3.	All cases adjourn generally.
	4.	Respective parties to file referrals to the appropriate local Court against both decisions of Aulutalau and Poikera House of Chiefs respectively.
	5. All the injunctive orders to remain as they are.
	6. No order as to costs.
	The Court.