Hou v Wate [2018] SBHC 84; HCSI-CC 74 of 2015 (23 August 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Hou v Wate
Citation:
Date of decision:	23 August 2018
Parties:	Ansa Wate, Richy Hou v Chris Wate, Southern Forest Industry, Global( SI) Limited
Date of hearing:	12 June 2018
Court file number(s):	74 of 2015
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Rex Faukona PJ
On appeal from:
Order:	Application for summary judgment refused Costs incidental to this application is payable to the Defendant by the claimant Case adjourned to 6th September for mention.
Representation:
Catchwords:
Words and phrases:
Legislation cited:	Civil Procedure Rule
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 74 of 2015

ANSA WATE AND RICHY HOU
Claimant

v

CHRIS WATE
First Defendant

SOUTHERN FOREST INDUSTRY
Second Defendant

GLOBAL (SI) LIMITED
Third Defendant

Date of Hearing: 12 June 2018
Date of Ruling: 23 August 2018

Mr B Upwe for the Claimant
Mr D. Nimepo for the First, Second and Third Defendan

RULING ON APPLICATION FOR SUMMARY JUDGMENT

Faukona PJ: An amended claim for trespass and damages was filed by the Claimants on 6^th May 2015, for trespassing onto Lot 2 (PN: 209-003-2) and Lot 3 (PN: 209-003-3). It was alleged the entry by the Defendants was purposely to conduct logging associated activities and construction of a log pond.

2. Because of the allegation of trespass, application for restraining orders was filed and was granted on 24^th March 2015. Thereafter were amended by consent on 30^th March 2015.
   3. A defence by the first and second Defendants and a counter claim was filed on 26^th April 2016. In fact the defence should be treated as amended defence.
   4. Noted that the amended claim was filed purposely to cater for third party inclusion as ordered by the Court on 31^st March 2017. Logically, it would be up to the first and second Defendants whether to file any amended defence, or affirm their original defence which they had filed. In any event, that has yet to be affirmed.
   5. The current application is for an order to summarily dismiss the defences filed by the entire Defendants pursuant to R9.57 of the Solomon Islands Court (Civil Procedure) Rules 2007.
   6. Rule 9.57 conferred upon the Claimant a belief that after a defence is filed, the defendant does not have prospect of defending the claim. A belief advocated here, is not a belief emanated from void and darkness circumstances. It is a belief assessed by perusing the defendant’s defence and measure up to the statement of claim. Having done so, concluding that the defence filed is weak and have no prospect of defending the claim. Ultimately it means that the claim, as it is, on current evidence, has the prospect of succeeding in the proceeding. Surrounded by the circumstances the Claimant belief, to proceed to trial is a waste, therefore thought it would be less expensive and not a waste of time; and better to end the proceeding early.
   7. To do so, rules have allowed an application to end the proceeding early by an application for summary judgment. Capitalising or benefitting from the provision, this application is intended to dismiss the Defendant’s defence as filed.
   8. The law on this sort of application is profoundly made clear by S. 200 of the Land and Titles Act. It states in;
      • Subsection (1). Where a registered in land is owned jointly the joint owner shall hold on the statutory trust.
      • Subsection (2). Where two or more persons are joint owners of a registered interest in land,
        1. a disposition of the interest shall be made by all the joint owners; and
   9. In such application the Court is tasked to determine whether there ought to be a trial. To defeat the application the defendant does not need to show good defence. He needs only to show an arguable defence or some reasons why there ought to be trial. If there is an issue for investigation, summary judgment will not be granted.^[1]
   10. In excise of its jurisdiction 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 that it has the requisite material and necessary assistance from the parties to reach a definite and certain conclusion^[2]. This paragraph was adopted in the above case by His Lordship, Apaniai J. Originally it was cited in the case of General Steel Industry Inc V Commissioner of Railways.^[3]
   11. From case authorities, it is pertinent to identify some, if not one issue to be investigated at trial. One particular issue which attracts attention is, if the first Defendant is of a different tribe why should he be chosen as a joint registered trustee representing a differently tribe, in this instance, utasusu tribe. What qualification had he had in custom so as to be selected as one of the trustees representing the utasusu tribe? I noted there was a declaration executed by the trustees in relation to PN: 209-003-2. Is there any evidence to attest otherwise which its revelation was never exposed? Ultimately, provision of evidence ought to be investigated in order to arrive at a conclusion.
   12. Another issue is whether the Claimants own Lot 3 PN: 209-002-3, or the Church of Melanesia Trust Board (Inc). And whether consent been granted by the real owner of the Lot for the Defendants to use as storage? This is significant because one of the reliefs sought in the claim (order 2) which seeks a declaratory order that the first and second Defendants do hold a lawful authority to occupy Lot 3.
   13. This leads on from thence, is a question whether the first and the second Defendants by entering Lot 3 amounted to trespass in law. If so, are the Claimants rightful persons (owners) to seek declaratory order against both Defendants for being trespassing? Have they got authority to do so.
   14. Those two issues alone are sufficient for the Court to investigate at trial.
   15. There are many other issues identified, for instance, the question of whether the Claimants and the first Defendant, as joint owns of Lot 2, were trustees for the Su’uri Community or utasusu tribe. The declaration endorsed by the trustees outstandingly shown and reflected they represented utasusu tribe. In my humble approach, that is not an issue. It’s fervently clear from the declaration who the trustees intended to represent, utasusu tribe. In my humble approach, that is not an issue but become the question as to who are the beneficiaries of the estate.
   16. In conclusion, at least, the defendants have shown there is an arguable defence which require the Court to investigate at trial. This is not an exceptional case where the defence lacks requisite material so that Court will exercise discretion to terminate the cause of action. I must therefore refuse to grant order for summarily dismissing the first and second Defendant’s defence.

Order:

1. Application for summary judgment refused.
2. Costs incidental to this application is payable to the Defendant by the Claimant.
3. Case adjourned to 6^th September 2018 for mention.

THE COURT
..........................
REX FAUKONA
PUISNE JUDGE

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^[1] Brown V New World Limited
^[2] Ibid (1)
^[3] (1966) NSW, HCA 69; (1964) 112 CLR Per Barwick, CJ.